Clause 1.—(ABOLITION OF DEATH PENALTY.)

I beg to move, in page 1, line 6, after "murder" to insert:
except where the jury finds expressly that the kiting was a deliberate and calculated act.
The object of the Amendment is to abolish the death penalty except in cases of deliberate killing. It will have certain other very important effects. It will gel rid of certain legal niceties, such as what is known as express or implied malice in murder. The complexities surrounding the M'Naghten Rules will be obsolete, and the point about a reasonable man as a test in cases where murder may be reduced to manslaughter will also be affected in a very important respect, because now if it is wished to reduce the offence to manslaughter, it has to be shown that the accused suffered such provocation as might cause a reasonable man to lose self-control, and no consideration can be paid to any other circumstances such as physical disabilities. That would be changed so as to take all these facts into consideration.

Cases of suicide pact will be excluded also if this Amendment is passed. All those technicalities and niceties will go. There will thus be left only the clear-cut issue of fact, not of law, which it will be for the jury to decide: was the murder a wanton, deliberate and calculated murder? That will be the only issue of fact left.

I want to make clear at the outset also that the Amendment does not seek to set up degrees of murder. If it is passed, there will only be one capital offence, namely, deliberate and calculated murder.

The onus, of course, will be on the prosecution to satisfy the jury, and unless the jury is satisfied that there was a deliberate and calculated murder there can be no verdict on murder and no death penalty.

I rest the case for this Amendment on four propositions which I will ask the Committee to consider very carefully. The first is that wanton and deliberate murder is the most heinous crime that an
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individual can commit against the community and, therefore, the punishment should be fixed accordingly.

The second proposition is that the punishment must be fixed so as to bear a proper relationship in character and in consequence to the scale of penalties imposed for other crimes of less public gravity and injury.

The third proposition is that the death penalty is by its nature an instinctive deterrent, and for Parliament to remove it and expose the public to even the possibility of an increase in the crime of murder would be an act of irresponsibility; and to do so in the absence of any mandate from the electorate would make that act all the more indefensible.

My last proposition is that this Bill, to which this Amendment is sought to be applied, makes the country accept a weakening of the law against deliberate and calculated murder which the country overwhelmingly opposes. Although it may be true that Parliament may laudably be in advance of public opinion, it has no authority to flout it.

I ask hon. Members to reflect carefully on these propositions. Surely the first, second and fourth are unarguable; as regards the third, relating to deterrence, I shall come to that in a few moments. It is perfectly clear that nobody is bound to commit murder voluntarily. If a man does so, he must face the consequences. In this Committee, we must think of the public as a whole, not quite so much about the murderer. It is the public interest which is at stake and it is Parliament's bounden duty to protect the public.

We have had a lot of anti-hanging propaganda, served up with lurid and harrowing details of the hangings which have taken place. We hear very little about the terror, suffering and ordeal that the victim has had to go through, or the anguish and grief of the family and relatives. The truth is that the abolitionists—in their kind hearts, of course—have the whole of this matter completely out of focus.

When one looks at the annual abstract of statistics, the figures really make one feel that if a greater effort were made by the abolitionists to take death off the road instead of off the rope, a much greater service would be rendered to the community. It is important for everyone to
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remember—indeed, it is vital for every responsible Member of this Committee to remember—that in the past 32 years 16 or 17 innocent people were killed on the roads of Great Britain every day. That is a total of 5,940—

In my submission, this is very important and relevant, Sir Charles. I am seeking to show why the death penalty should be attached to cases of deliberate and calculated murder, and, in my humble submission, these matters are all closely relevant. I was saying that there have been 5,940 deaths a year on the roads, compared with 12 people hanged each year for murder. There is greater scope for human amelioration in what happens on the roads as compared with the death penalty.

My Amendment protects anyone except the person who is guilty of wanton killing. I want that to be quite clear. It is only the person who is guilty of deliberate and calculated murder who is at all involved in the death penalty. Of course, we in this Committee all agree that the lethal act of an irresponsible person, no matter what grief or tragedy it may cause, is properly a matter for human pity and compassion; anyone would agree with that. But one who does murder with deliberate intent, cruelly and pitilessly taking the life of a fellow being, defies and desecrates the sacred law by which alone society can safely exist, namely, that human life should be protected from wanton and criminal killing. For the wanton killer there is, I believe, only one sanction, and that is death.

I wish for a moment to deal with this matter of the deterrent and whether the death penalty is, indeed, a deterrent. I agree that it is impossible for anybody to bring evidence relating to the mind of man. No one can prove what is in the mind of man. A great judge once said that the mind of man was not triable for the Devil himself knoweth not the
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mind of man. None of us in this Committee is an archangel but anyone with ordinary reflex actions must surely feel that death must be an instinctive deterrent to any person in his senses. To remove that deterrent against the capital crime is to run the gravest risk of increasing that crime. A person who is not instinctively affected by the death penalty must be either a villain, who does not care whether it exists or not, or else he must be insane, and then he runs no danger from this Amendment.

Let me take an example of the arguments advanced by the abolitionists in order to defend their point of view on this matter of the deterrent. They depend upon an utterly falacious and sophistical argument—

On a point of order, Sir Charles. Is it in order to repeat again the general argument about deterrents which we had on Second Reading? If it is, will it be possible for other hon. Members to open up that subject again?

I was not referring to any arguments advanced on Second Reading. I was referring to the main argument advanced by abolitionists on this subject; and whether hon. Members who hold these views like it or not they must be made to listen.

It is because what I am saying is in order, and because they know its effect, that hon. Gentlemen do not wish to listen to me.

The abolitionists say that capital punishment exists, yet there is murder. So, they argue, capital punishment is not a deterrent. That is just as logical as to say that surgical operations are carried out to prevent people from dying, yet people who have undergone these operations have died. That is just as sensible
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an argument as the one advanced by the abolitionists about the death penalty.

No one can prove that the fear of hanging stops a would-be killer, but to say otherwise is against every dictate of common sense and every instinct of human nature. I cannot see how it can be argued that the death penalty is not a deterrent. Then the abolitionists say that the death penalty is irrevocable, so they ask this Committee to abolish it. Surely that is no argument. If the penalty of death is a proper sentence for killing, the mere fact that it is irrevocable or that a mistake may be made is no argument against the rightness of it. I am concerned with the sacrifice of innocent lives at the hands of a murderer rather than with arguments about the murderer himself.

The next argument the abolitionists advance is upon the grounds of judicial fallibility.

On a point of order, Sir Charles. Owing to the selection of speakers by Mr. Speaker during the Second Reading debate we were then saved a Second Reading speech from the hon. and learner Member. Must we submit to it now?

I am putting forward a very serious Amendment, and I am trying to justify it by these arguments. I do not see how my Amendment can be justified unless these arguments are advanced.

While the abolitionists complain about judicial fallibility, they desire the Committee to accept their own infallibility. They say that if we get rid of the death penalty, there will be no greater danger of murders increasing than now.

On a point of order, Sir Charles. In view of the fact that the hon. and learned Member for Gloucester (Mr. Turner-Samuels) has now repeated practically verbatim every argument that was made in 1837 when John Field was the Member for Oldham and raised this matter and nearly carried it on that occasion; in view of the fact that we have had a full debate
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and that no hon. Member on this side of the Committee wishes for one moment to take any action of a controversial nature—[HON. MEMBERS: "Oh."]—no, he does not; in view of the fact that up to now, as everyone who has listened to the hon. and learned Member will agree, his speech has been entirely a Second Reading speech, may I point out that after nearly half-an-hour the hon. and learned Member has not explained one word of the Amendment, or what he thinks it means or to whom he thinks it should apply?

That kind of thing is really quite unjustified, Sir Charles. I have already explained what is the effect of my Amendment. I started out most carefully and meticulously to explain that, and now I am trying by argument to justify my Amendment.

I come now to what I hope will not be objected to as a Second Reading speech, the question of criminal statistics, which I think most important. The increase in acts of criminal violence is most relevant when we are considering an alteration in the punishment for murder, the most violent of all crimes. If one looks at the criminal statistics for 1954, one will discover that they are most illuminating and should exert a strong influence upon hon. Members in this Committee. In my submission, we have no right to take note of our personal feelings as against the facts revealed in these statistics. The first figures to which I wish to refer are those relating to violence against the person, and I wish to show the Committee what has happened about the number of these crimes from 1938 to 1954.

In 1938, the number of crimes of violence against the person was 2,721. In 1954, the figure had risen to 7,506 and if we take the whole table right through we see a constant rise. If we go from 1948—

On a point of order. I hesitate, and have hesitated long, to interrupt, but we have a large number of Amendments on the Notice Paper, and, with great respect, I submit that a careful detailed analysis of crimes of violence
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against the person in 1954 is not very close to the Amendment which the hon. and learned Member is supposed to be moving.

I would ask the hon. and learned Member to try to speed up his speech. We have a lot of Amendments on the Notice Paper, and he is taking a very long time. If all hon. Members take as long as he is, we shall be here for a very long time.

From time to time we have heard a number of long speeches from those in favour of the abolition of the death penalty. I feel it my duty to support my Amendment by the facts to which I was referring. I am not prepared to ask the Committee to accept the Amendment without giving some facts to justify it. I believe that nothing can justify it more than these details that I am giving with reference to crimes of violence against the person.

One of the main points that we have to consider is whether, at a time when crimes of violence are increasing at such a rate, the House of Commons can properly and responsibly pass a Measure which is going to weaken the criminal law relating to punishment for an act of murder. It is a most important consideration. However, I do not intend to go fully into those figures. I merely wanted to say that as recently as 1948 the figure was 5,183, whereas in 1954 it rose to 7,506.

On the question of murder, the figures show not an increase but a decrease, and that is a very important matter when we consider whether the death penalty is a deterrent or not. Let me very shortly give the number of cases. In 1948, the number of cases of murder was 40; in 1949, 33; in 1950, 38; in 1951, 22; in 1953, 26; and in 1954, which is the last year for which we have the figures, the number is 25.

The reason I want the death penalty retained is that the reduction in the number of murders results from the deterrent that the death penalty provides. What I am seeking to show is that heavy imprisonment is common for acts of violence, sometimes for as long as ten, twelve and fourteen years, and yet that does not act as a deterrent. The abolitionists are now seeking to substitute imprisonment for the death penalty in cases of murder.

There is also the question of the scale of punishments that exist at present. Take, for example, the offence of rape. The sentence for rape is life imprisonment. If this Bill is passed, the sentence for rape plus murder will also be life imprisonment. The sentence for burglary can be life imprisonment. If this Bill is passed as it now stands, the sentence will be exactly the same for burglary with murder.

That is ludicrous. It is asking the House of Commons to commit an act of the grossest irresponsibility and to say that whereas rape, for example, is punishable by life imprisonment, then rape plus murder should be punished in exactly the same way. To ask the Committee to pass that would be to ask it to commit an act of exceptional irresponsibility.

I do not want to delay the proceedings. I am just as earnest about this matter as are the abolitionists. I do not like to think that there might be a possibility, however remote, that by any act which this Committee takes we might encourage or increase the possibility of acts of murder. The function of this Committee is not to expose the public to risk, but to protect the public. This Bill, if it is passed unamended, will expose the public to much graver dangers from murder than ever before

This Amendment merely asks the Committee to say that when we get a wanton, foul, callous, deliberate and calculated murder for which there is absolutely no excuse whatever, where a man has killed somebody, as in the Haigh case where
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the man killed at least nine people for the purpose of gain; where a man, in order to satisfy his lust, as in the Christie case, murders a number of women; in cases of that kind where there is no justification and where it is the most dreadful act against the community, the murderer should be made to face the consequences and that the only proper punishment is the death penalty.

The point may be a very narrow one. It may be that it would have suited some of my hon. Friends who are in favour of abolition if we who advocate the contrary did not say so much about it. The fact remains that if this Amendment is not accepted, the Committee is being asked to permit a situation in which a man who murders in that way will be relieved from the only deterrent that can possibly be applied in the hope that it may save at least someone from this dastardly crime. I ask the Committee to think of its responsibility in that respect. Before rejecting this Amendment, hon. Members should consider deeply what the consequences might be.

On a point of order. I submit that the Amendment is out of order. The crime of murder consists of malice aforethought. The Amendment refers to the case where,
the killing was a deliberate and calculated act.
Any killing with malice aforethought must be a deliberate and calculated act. If it is not, then it is not killing by malice aforethought, and it is not murder. The effect of the Amendment, therefore, is a direct negative to the Bill, because this exception would include the whole; it would include every possible case of murder.

I may have been wrong in my selection of Amendments, but I obtained the best advice I could. I am not learned in the law, and I was advised that the Amendment was in order. I therefore called it. I am not qualified to enter into a discussion of the legal niceties of the matter.

I am very grateful to have the privilege of supporting the Amendment, because I regard it as one of the most important ones to the Bill. For years past I have thought that different punishments should be awarded for
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different kinds of murder. The hon. and learned Member for Gloucester (Mr. Turner-Samuels) made specific reference to the long-premeditated, carefully planned and cold-blooded murder, which was undertaken for personal benefit or financial gain, and I hold that that type of murder should be placed in a special category and should be punished by the supreme penalty. Many of our minds will go back to the case of the "Brides in the Bath," which was a case of premeditated murder for personal gain.

The other kind of murder is that which is committed in a kind of frenzy of passion or even justfied rage and—an important point—is never likely to be repeated.

I have listened to what the hon. Member has said with complete understanding and sympathy, and in no spirit of hostility. I can well understand the distinction he seeks to draw between the deliberate and well-calculated act, and the frenzy of passion. The simple point which I want to make is that what we call the mercy murder—the killing of a relative for motives of kindness in order to relieve him or her from pain—

It is a perfectly simple point. I was referring to the killing of a child by a mother, for motives of kindness, for instance. We all know the case of the dreadfully ill child, with no hopes of recovery, who is given a drug to put him out of his misery. That is precisely the type of murder which the jury would have to find was a deliberate and calculated act. I am not making a cheap point here. The words of the Amendment go far beyond its apparent intention.

I appreciate the hon. Gentleman's point. I feel that that type of murder deserves to be placed in a category by itself. I am quite certain that the courts will be cognisant of the matter. [An HON. MEMBER: "What about the law?"] We know all about the
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law. Hearing so much from hon. and learned Members, we fancy that we know as much about the law as they do. However, that does not solve the question; it merely places an added responsibility upon the courts and, later, upon the Home Secretary, to find a way out—a way of releasing a heartstricken mother from bearing the resposibility of her crime.

There is a further point which was referred to—I will not say "briefly"—by the hon. and learned Gentleman, namely, the position of the victim of the long-premeditated and cold-blooded murder. Our present legal arrangements are founded upon the Criminal Justice Act of 1948. In the whole of that large tome, which the right hon. Member for South Shields (Mr. Ede) will remember so well, not one mention is made of the victim of murder. He may have suffered a far more painful death than the murderer is likely to suffer. We must remember the circumstances of the Heath case.

Stress has been laid upon the fact that the murderer has relatives, but the victim also has relatives—friends and relations whose homes may be destroyed, lives wrecked and hearts broken. Let us for a time, at any rate, concentrate our minds upon the victim and his dependants rather than upon the well-being of the murderer. We have a dreadful responsibility in this matter.

One of the cruxes—or whatever is the plural of crux—of the matter is the very important Amendment which we are discussing. If we can be assured that those who, in a fit of temporary emotion which is almost uncontrollable, will receive merciful consideration, whereas those who, for their own personal gain, deliberately plan a murder of a pretended loved one, or someone else, receive the extreme penalty, we shall feel that much of the well-meaning but miserable effect of the Bill will be taken out of it, and we can face the future with greater confidence.

This Amendment is totally misconceived. The idea is to introduce degrees of murder, but the Royal Commission on Capital Punishment, Select Committees of this House, the Leader of the House, the Home Secretary, and others, have all told us that degrees of murder are impracticable. I would advise my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) that a problem which has
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proved so intractable to such careful examination will not be solved by so simple a plan as is proposed in the Amendment.

What does the Amendment cover? The hon. Member for Ayr (Sir T. Moore) has just said that there are certain murders which he would like to exclude. Do the words of the Amendment do it? What does a jury find when it reaches a verdict of "Guilty" under the direction of the judge? It finds that the killing was done "with malice aforethought". How can killing be done with malice aforethought if it is not deliberate? No killing that does not result from a deliberate act can be murder. It can be deliberate in the sense that it is designed to kill or that killing is required, but that is not affected by the Amendment.

The Amendment refers to killing as a result of a deliberate and calculated act, but how can an act done with malice aforethought be other than calculated? Indeed, what does the word "calculated" add to the word "deliberate"? There is no finding of murder that does not express the finding by the jury that it was the result of a deliberate and calculated act, but that does not imply any degree of murder at all. This is a misconceived and nonsensical Amendment.

For about 14 hours, during the three previous debates on capital punishment, I tried to catch Mr. Speaker's eye, without success. Perhaps I may be excused now if I have a lot of undigested matter in my mind which I must try not to present to the Committee.

The point of the Amendment, apart from the wording of it, needs to be the subject of some scrutiny because it endeavours—although it may not formally succeed—to concentrate our attention on the deliberate type of murder which was referred to during those long 14 hours and which is contrasted with the crime passionel. Progress for the abolition case was made in those debates by pointing out the hard cases of people who were inflamed by passion or by temper and committed murder, and many hon. Members felt that it was intolerable to hang such murderers.

The Amendment directs the attention of everybody to the worst case conceivable, that of the deliberate and calculated
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murder. Let me endeavour to put to the Committee some arguments which arise on this aspect of the matter. First, let us remember that if we abolish the penalty for murder altogether, we shall abolish the penalty for the worst type of crime. We are not only saying, "We are exempting the weak and the sexual maniac from this penalty," but we are also abolishing the penalty for the most cold-blooded and deliberate murders. There may be technical objections to the Amendment, but I invite my hon. Friends to vote for the Amendment and to show that they wish to preserve the penalty for what is described as the "calculated" act.

Let us look at the matter bearing in mind the question whether the extreme penalty should be there or not for the deliberate murder. I am not suggesting that all murderers should be punished in equal measure; that is outside the scope of the Amendment. The Amendment deals with the category of deliberate murder. Why do we think that this worst and most inexcuseable type of murder should bear this penalty? There are three arguments why the penalty should be imposed for deliberate murder.

4.45 p.m.

I know that the idea has been tossed about that the death penalty is a breach of the Commandments and against Christian teachings, although in fact it is not against any of the Thirty-nine Articles or the tradition of the Christian Church. No Christian Church has ever condemned capital punishment as being in all circumstances wrong, particularly in the case of someone guilty of deliberate murder.

The second argument concerns the burden of proof. I mention it because some of my hon. Friends, as can be seen from their Amendments, have been turning this matter over in their minds. They are in some doubt, and it is to them that I am primarily appealing. The burden-of-proof argument may be the key to the matter for many of us. I remember a highly-respected former right hon. and learned Member of this House, Sir Frank Soskice, saying, "Taking life is a terrible thing, but the burden of proof is on those who justify the taking of it". Put that way, the argument is rather convincing, but the fact is that the burden of proof rests today on those who want to abolish
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the penalty. They have to amend the law and argue their case. In the face of these considerations, it is difficult to say that presumption is on the State here and now.

If it were, the Government would have to justify all penalties, however light, if the burden of proof lay on those who support existing penalties. I say that the burden is the other way round. The person who murders incurs the penalty under existing law, a law which has been there for centuries, going back to the Middle Ages. I submit to those who are in doubt that it is quite compatible with their consciences to say, in respect of these deliberate murders, the burden is on those persons who say, "We can very well get rid of the punishment."

The third point is one which has not been exhaustively dealt with, even during those previous 14 hours, the question of justice. The Amendment should not be judged entirely upon what is called the "deterrent" effect upon potential murderers. It may be readily assumed that a calculated murder committed for plunder implies that the murderer is certain that he will get away, and therefore that the deterrent will fail in its effect and that it is unnecessary to have it. That argument is very powerful, and if that were the end of the story I do not know how we could resist it; but is it? Is it a matter of justice to have the penalty or a matter of deterrence only? Are we to take away the punishment of the murderer simply because it is not certain that it is a deterrent to potential murderers?

It is not the whole of justice to say that if I can get a particular result I am entitled to use any methods. By a parity of reasoning it is no proof of injustice to say that if I am not sure of the results I cannot use these methods. To judge by deterrence only reduces justice to a very cruel, hard thing. It could, in certain circumstances, justify torture or any form of barbarity if it were proved that this would stamp out particular offences. The truth of the matter is that in all punishment, and not capital punishment alone, there is the element of justice. No one would bring back torture, even if one thought it would be effective. No doubt, if we were to torture people for their Income Tax returns we should get more money in, but we would not do it because
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it would be unjust and not because it was not effective.

From a subjective point of view there are degrees of murder. But objectively there is no degree in life. One is alive or dead. It is in the interests of the community itself that this question should not be judged by some short-term experiment but on its whole effect on the community. The English people are an old people. They are not educated by five years' experiment concerning capita] punishment. They are not educated by soft water. Their history is deep in the country and deep in England, and that is what keeps the statistics down.

Everyone in this country has realised for centuries what a terrible thing it is to take innocent life deliberately. The shadow of the gallows has educated the people. It is not merely that people do not commit murder because they are afraid of being hanged. They have been told all their lives how wicked murder is and the gallows stands to confirm the lesson. That has been the educational effect of this punishment—that has been the background.

I submit to the Committee that we must make it clear in this country that the deliberate killing of people must in justice, and not in deterrence only, operate to bring this awful penalty. We must show the majesty, the power and the ruthlessness of the State to protect its people. What will people abroad think when they see that, even for a calculated murder, this is a country which has not the moral courage or belief in its right to protect itself, not merely from its domestic enemies, but from the enemies of foreign Powers?

I submit to the Committee that this Amendment is a test. It is meant to deal with the worst case imaginable and, so far as this Amendment is concerned, I maintain that the State should in fact exact the extreme penalty.

I was unable to follow altogether the last argument of the hon. and learned Member for Bolton, East (Mr. Philip Bell), but I heard someone say that it was a very good argument, and therefore my inability to follow it is no doubt entirely my own fault. I will tell my hon. and learned Friend what was my difficulty. It was that he appealed to what people in other countries would
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think if the Committee did not accept the Amendment now before it. He must by that reference have intended it to relate to the peoples of those countries who had themselves abolished the death penalty for all murders. I say to him with the utmost sincerity that perhaps not he, but certainly very many people who sincerely want the death penalty to be retained do not realise how much harm has been done to the good name of this country in those countries by what they regard as our obstinate clinging to a penalty which they know from their own experience is entirely unnecessary for the protection of the public.

All the arguments used so far in support of the Amendment are arguments which were equally relevant—I am sure that the hon. Members concerned will accept this as fair—to the Second Reading debate. They were all used in the Second Reading debate and all used in the debate on the Motion on 17th February. In so far as I have an answer to them, I have given my answer on each of those two occasions, and therefore I hope that they will accept it as no discourtesy to them, but only as an attempt to save the time of the Committee, if I do not offer them the arguments all over again. I have no new arguments, and I have no reason whatever to think that the arguments which failed to satisfy them on those occasions will satisfy them today. Nor have I any reason to think that those of us who were not convinced by their arguments on those occasions in relation to the whole principle are likely to be convinced by further repetition of them today in support of an Amendment which the hon. and learned Gentleman has just quite fairly said one could only understand by disregarding its words and trying to see what point, if any, was behind them.

This Amendment is one of some thirty or forty Amendments all of which have one thing in common. What they have in common is that each of them suggests that, while the principle of the Measure is retained, some particular type or category or instance or definition of murder should be exempted from the application of that principle. To that extent, if all these Amendments were debated separately or even in groups, which you, Sir Charles, have told us are to be selected, there would inevitably be on the side of those
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of us who want to see the death penalty go a large number of speeches which could not help but be repetitious.

What I hope that you, Sir Charles, and the Committee will allow me to do is to state what I think myself is the proper answer to any attempt to keep the principle but to find some kind of murder which can be exempted from it. If I do that—I hope not at undue length, but with some passing glance at Amendments not yet before us—it is only because I do not intend, if I can do it now on one occasion, to make the speech again during the course of the Committee stage. If I did, it would only be the same speech again.

5.0 p.m.

It is not without significance that all the speeches in support of the Amendment so far have come from hon. Members who voted against the Second Reading and against the Motion on 17th February. I quite understand them, and I am not complaining in the least. They do not want the death penalty to be abolished, and if some of it is abolished they want as much of it retained as possible. That is their view. They hold it sincerely, they are sure they are right, and nothing I say will change their minds.

I am sorry if I did not make myself clear. What I said was intended to apply only to my own conduct during the debate. Any other hon. Member will, of course, make such speeches as he thinks it right to make at any stage and as often as he likes, subject only to the direction of the Chair.

I propose to make my case against this sentence once and only once. Nothing that I can say about this attempt to retain as much of the death penalty as possible is likely to have any effect—I would not expect it to have—on those who are in principle supporters of the retention of the death penalty. I therefore propose to address my remarks only to those who do not want to retain the death penalty but who, for one reason or another, feel that they must make some
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kind of concession, some kind of compromise.

If all these Amendments were carried, clearly there would be nothing left of the Bill, and those who feel that they should make some compromise will obviously not vote in favour of all the suggested Amendments. They will therefore have to apply some principle of selection; they will have to decide which concession they are not prepared to make and which concession they are prepared to make.

On a point of order. It is within the recollection of the Committee that preceding speeches in this debate in favour of the Amendment have ranged over the whole field of discussion as if it were a Second Reading debate. You permitted that, Sir Charles, despite the protests of some hon. Members. It is very hard that the sponsor of the Bill should be confined in this fashion when his predecessors were not.

It was not for want of trying that I was unable to prevent that from going on. I did my best. This is a new point. Is the hon. Member making one speech now and then not speaking again? He ought to confine himself to the Amendment we are now discussing. This is the Committee stage, not a new stage of which we have never heard.

I thought the procedure would commend itself to the Chair and the Committee as saving time. My objection to this Amendment is that it attempts to define one category of murder which ought still to be subjected to the death penalty, although the death penalty is not applied to all other murders. My objection to it is the objection on principle to making exceptions of that kind. I am against this exception because I am against all exceptions. All I was seeking to do was to make the case in principle against the Amendment, because to admit this Amendment would be to admit a principle which in logic I should be forced to apply to a great many other Amendments on the Order Paper.

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I want to state, not at great length but in full, the argument against making exceptions. I think it would be in order to do that in support of advice to the Committee not to accept this exception. By doing that I think I shall not find it necessary, every time every other exception is proposed, to make the same speech all over again. That is all I intended.

What I want to say to those who wish to abolish the death penalty is that if they were to accept this Amendment they would in logic be bound to accept, for similar reasons, a great many other Amendments on the Order Paper, and then there would be nothing left of the principle which they support. That is the way in which I am approaching the matter. I say to those who wish to abolish the death penalty, "Do not be misled or lured in any way by the eloquence of my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels), who moved the Amendment, into opening a door which afterwards you would find it very difficult to close, having regard to the large number of further Amendments on the Order Paper, which inevitably raise the same principle in other forms and apply it to other circumstances than those raised in the Amendment now before the Committee." I hope that is clear.

My first argument to those who might be tempted to accept this or other Amendments of the same kind, raising the same principle, is this: I should like to bring it down to rather frank and brutal terms. Perhaps my hon. and learned Friend the Member for Gloucester will follow this carefully for a moment, because it has a direct application to the Amendment which he moved. I understand that the figures show that in this country we execute 11 or 12 out of those sentenced to death every year. No more than that. The argument about the deterrent and about the safety of society rests in the last analysis upon what must be put before the Committee as the necessity to hang 12 men and women every year—one a month.

What I am asking hon. and right hon. Members to consider is this. If
1811
we are to make a compromise—any kind of compromise, and in particular the compromise which is recommended to us in the Amendment—how many people is it sought to hang? [AN HON. MEMBER: "The lot."] That is an answer from one of those hon. Members to whom I am not addressing my argument. I know that those who want to hang the lot, as the hon. Member has just said, will not be influenced. For the reasons I have already given, I am addressing my argument to those who do not want to hang the lot, who really do not want to hang any, but who feel, for different reasons applied to different circumstances, that some compromise or concession must be made.

How many is it considered should be hanged? At the moment, with the death penalty still the law of the land, the number is one a month. Would those hon. Members be satisfied that a reasonable compromise had been made if one a year was executed, or two, or how many?

I should regard such a speculation as being so hypothetical that I am no more able to answer it than is the hon. Member. In any case, because I know what he thinks about the principle, I repeat that I was not addressing my argument to him. I was addressing it to those, if there are any, who accept the principle of abolition but who want to accept a compromise.

To my hon. and learned Friend the Member for Gloucester, if I may have have his attention, I would say—

I hope my hon. and learned Friend will treat it seriously,
1812
because I greatly respected the sincerity of his own speech. Even if I did not myself always see the relevance or force of his argument, nevertheless I accept his sincerity—of course I do.

I am asking my hon. and learned Friend whether he has made any research or inquiry at all which would enable him to answer this question. It is obvious that if the Bill goes through unamended, there will be no further hangings. It might go through unamended except for my hon. and learned Friend's Amendment. What I want to know from him, if he has the means of telling me, if he has made any inquiry or research, should the Bill go through amended only by his Amendment, how many executions would there have been in the last five years? Does my hon. and learned Friend know?

How I can say what would have happened five years ago because of something that has not yet taken place but may take place, I find it very difficult to follow. What I do say to my hon. Friend in reply to his statistical question is that he is asking the Committee to remove this deterrent without being able—

No, I have not. The main answer is this, and I ask the Committee to think on it very carefully. My hon. Friend is asking the Committee to get rid of a deterrent—[An HON. MEMBER: "No."] Yes—in regard to the worst crime in the land, without being able to give a guarantee to the Committee that if we do get rid of it the number of those crimes will not be increased.

If that is the best answer my hon. and learned Friend has
1813
to the question which I asked him, I am prepared to accept it. Hon. Members will be able to judge how far it helps them to deal with the argument I am putting forward.

What is the deterrent about which my hon. and learned Friend keeps talking? The deterrent is the hanging of twelve people a year. He is saying that although the Committee might be prepared to abolish most of that deterrent, it ought to keep some of it.

Yes. My hon. and learned Friend has moved an Amendment which says that we should keep this deterrent in respect of the class of murder defined by his Amendment. I am asking him therefore to say, if he can, how much of the deterrent which he wants would be retained if he had his way on the Amendment.

On a point of order. It will be within your recollection, Sir Charles, that I was repeatedly interrupted—[An HON. MEMBER: "And refused to give way."]—by points of order. I have noticed that ever since resumed my seat the same so-called digressions have been made by those who raised the points of order.

5.15 p.m.

My hon. Friend has not followed the point I was making and is entirely misrepresenting me. To answer him I would say—

Those of us who are in favour of the abolition of the death penalty have always had to face and deal with the argument of deterrents. Therefore, we have done our best to examine statistics, not because they always prove everything, but because this is the only way in which one can estimate the size of the deterrent. If the hanging of people is a deterrent, how many
1814
people have to be hanged before the deterrent is effective?

Therefore, I say that anyone who proposes to the Committee that some exception ought to be made must in all fairness address his mind to the question: what is the size of the deterrent that would be retained if the Amendment were passed? How many executions would there need to be? That is what the argument boils down to.

I do not want to deal with the other Amendments out of turn—that would be out of order—but I do ask those who have their names to them, before they move them, to ask themselves what would be the effect on the—

On a point of order. I was kept strictly to the Amendment, Sir Charles, and you have already ruled that it is not proper for any reference to be made to the other Amendments the way that my hon. Friend is now referring to them.

Nevertheless, I do not think there will be much doubt about what Amendments we are being asked to consider on 25th April, 1956. Those are the Amendments with which I am dealing.

It is extremely important to consider the effect of the Amendment on the size of the remaining deterrent. In some cases they might say that it might make a larger difference. I am only saying that in considering the question of exceptions from the general principle, it must be done not in terms of abstract knowledge, but in arithmetical terms related to the number of deaths of men and women which are required as the deterrent On the question whether in principle there ought to be either this exception or exceptions in general, I think it is right to say that everyone on each side of the Committee agrees that it is not possible.

I call in aid in particular the Home Secretary and the Lord Privy Seal, and
1815
I would direct the attention of hon. Members to what they said in the debate on 16th February last. Dealing with this very point, the Home Secretary towards the end of his speech said:
I say simply that the Government remain of the opinion that these proposals are unacceptable to them. The Royal Commission considered other ways of limiting the present scope of murder. It did not think it practicable to do it by trying to frame a definition of murder. It discussed at length the superficially attractive proposal that capital punishment should be reserved for the more heinous offences by defining degrees of murder, but it dismissed that as impracticable. The Government agree that neither the definition of murder, nor an attempt to distinguish between different degrees of murder offers a useful line of approach."—[OFFICIAL REPORT, 16th February, 1956; Vol. 548, c. 2558.]
Earlier in his speech he had said in express terms:
The Government are asking the House to consider the straight issue of retention or abolition—that, I think, is the only issue. …"—[OFFICIAL REPORT, 16th February, 1956; Vol. 548, c. 2545.]

This Amendment does not, does the hon. Gentleman not think, attempt to define degrees of murder? This is not contained in any proposals of the Royal Commission. The Amendment relates to an express finding by a jury after the termination of a case of premeditated murder. Therefore, it does not come within the ambit of the proposals at all, does it?

I cannot myself find in the Amendment anything to support the hon. Gentleman's statement that this decision on whether a murder is covered by these words is a decision to be taken after the finding of murder.

It says quite clearly that a jury may return a special verdict, which is analogous to a special verdict, found in the law of Scotland, of culpable homicide in a case of diminished responsibility. So the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels), who moved the Amendment, is inviting a particular type of case in which a special verdict shall be returned.

All the same, there is not a single word to that effect in the Amendment. However, I am prepared to say, and I think it is fair to assume
1816
for the purposes of my present argument, that that is what my hon. and learned Friend the Member for Gloucester had in his mind; but in that case he merely reinforces the argument I was advancing to the Committee and that the Home Secretary was advancing to the House at that other time. I hope the hon. Member for the Isle of Thanet (Mr. Rees-Davies) will follow, because I am trying to deal with the very point he made.

What he is saying is that this Amendment, if it were carried, would leave to the jury a special verdict after the facts of murder had been found. Very well, but that is precisely what the Royal Commission recommended unanimously, and what has been virtually unanimously rejected by everybody ever since. The Royal Commission was precluded from dealing directly with the issue, and it tried to find some other way, and it said, "Very well, leave it to the jury in each case as a special verdict after the facts of the murder have been established." The Home Secretary is not in favour of that.

I am quite sure the hon. Gentleman does not mean to mislead the Committee, but he is doing so. What he is suggesting is that the recommendation was that the jury should find a special verdict. The Royal Commission found that only in relation to sentence. The Amendment is not only in relation to sentence. This is a special finding when it is premeditated murder which would have an effect on sentence automatically.

I certainly am not intending to mislead the Committee, and with great respect to the hon. Member's argument, I do not think I did mislead the Committee, but I think it would be misleading the Committee to lead it to believe, as I am sure the hon. Gentleman did not intend it to do, that this Amendment, which is to enable a special verdict after the fact of the murder has been established, has any relation whatever to any issue in the case except the sentence. That is exactly what the Amendment has been moved for.

What my hon. and learned Friend is saying is, "I am not bothered about the character of the murder at all, except in relation to the sentence." What my hon. and learned Friend is saying is a good deal more comprehensible than what
1817
the hon. Member for the Isle of Thanet is saying. It is quite simple in itself, whether one agrees with it or not. He is saying, "We ought to have the death penalty for one kind of murder, and in order to decide whether the death penalty should be inflicted or not in a case, the jury should be invited"—and the hon. Member for the Isle of Thanet said what my hon. and learned Friend did not say—"after finding their general verdict on the facts to find whether these words apply."

For what purpose? Only for the purpose of determining the sentence. It is, therefore, one special case of the proposition which the Royal Commission was putting forward and which everybody since has said is completely unworkable and unfair. In any event, whether I am right or wrong about that, I am sure that the hon. Gentleman would not quarrel with me for a moment when I say that if this Amendment were to be carried we should in fact be creating one special category or definition of murder in which the death sentence should be retained. That is the purpose of the Amendment. That is exactly what the Home Secretary, in the passages of his speech which I have quoted, advised us not to do.

To complete the point, I refer now to the Lord Privy Seal's argument on the same occasion at the end of that debate. He said:
We believe that a chance of amending the law does not lie here, although, as I shall show, the issue tonight is whether to abolish or not to abolish the death penalty. … I should like to dispose of another argument of the hon. Member for Nelson and Colne. We are not attempting in this case to define degrees of murder, nor are we attempting, as was done unsuccessfully by the Administration in 1948, to define crimes. I need not tire the House with a recitation of the history of those attempts—but they were unsuccessful, and I accept the hon. Member's view that any such attempt is impossible. I do not see that it can be done. The present Permanent Under-Secretary to the Home Office—than whom there is no more able man upon this question—in evidence before the Royal Commission said that cleverer men than he had attempted to define degrees of murder and had failed. I cannot believe that it is possible.I think, therefore, that at this hour of night the House must face squarely up to the position that there are certain alterations in the law which can be made, but that the main issue is whether we do or do not retain the penalty of death. It is in that spirit that we can look at some of the amendments proposed."—[OFFICIAL REPORT, 16th February, 1956; Vol. 548, c. 2647.]1818
Therefore, we have a situation in which for over 90 years attempt after attempt has been made to do this very thing without success. We had the attempt made in 1948, in a spirit of compromise, to do exactly this, on the initiative originally of another place. When we had that attempt, hon. Members will remember what the law lords and other members of another place thought of it.

5.30 p.m.

We then have the Royal Commission on Capital Punishment saying that the attempt to do it was chimerical and that the hunt for the chimera had better be abandoned. Then we had the Lord Privy Seal and the Home Secretary, in advising the House of Commons to retain the penalty, making it perfectly clear that an attempt to find exemptions for particular types of murder ought to be abandoned and that the straight issue was whether or not to retain the death penalty.

I say that the Committee, in this Amendment certainly and in some other Amendments, is faced with that proposition. The Committee must face squarely the question whether or not it wants to abolish the death penalty. The House of Commons has twice said within a few months that it wishes to abolish it. If I may say so with respect, there is a fallacy which underlies the plausibility of this Amendment and some others. The fallacy is that in adjusting the measure of a penalty we can do it in relation only to the legal definition of the offence.

When we are considering whether a man or woman is guilty or not guilty of a particular offence, the acts which he or she did are obviously the only correct yardstick, but we are in a very different realm indeed when the offence has been proved and we are considering, not what the offence was, but what the penalty should be. When we are considering what the penalty should be, it is the subjective personality, background and a whole host of considerations personal to the criminal who has been convicted that are the decisive factors in deciding whether the particular penalty or some other penalty is appropriate.

The fallacy underlying the whole of these Amendments is to apply a perfectly good test but to apply it in the wrong field and to the wrong question. Nothing is to be gained at this stage by trying to do things which cannot be supported in
1819
logic, and which, because they cannot be supported in logic, would be a breach of principle. At a time when the House of Commons has made up its mind and hon. Members whom I am particularly addressing have, with great courage, made up their minds and stuck to it, it would be a breach of that principle now to apply exemptions which cannot logically be justified, which have no moral justification of any kind, in the hope that, somehow or other, somebody's opposition might in some degree or for some time be placated.

I do not believe that that is possible. If it were not presumptuous or impertinent on my part to do it, I would earnestly appeal to those who have voted solidly throughout our debates for the abolition of the death penalty not to do now anything which would result in our retaining all the paraphernalia of the rope, the gallows, the hangman and the black cap and all the rest of it, in order to have some verbal amendment which, in their own minds, they know has little or no practical results.

The hon. Member for Nelson and Colne (Mr. S. Silverman) said quite candidly that he was against all exceptions on the Committee stage of the Bill, but surely the whole point of having a Committee stage is that we should try to reach a compromise. I am one of those who would prefer the death penalty to have been retained. I do not intend to go into the many arguments which we heard on Second Reading but, in view of the close voting on the two occasions in the House of Commons when we discussed the matter, one can only approach the Committee stage with a desire to reach a compromise on the various Amendments put forward.

The logic, therefore, of the Amendment is to try to narrow down the field of those people who have been found guilty of the act of murder. The hon. Member for Nelson and Colne said that we were discussing the fact of about eleven or twelve murders a year.

Yes, executions. The hon. Member asked what number of people we wished to see hanged in order
1820
to retain the death penalty as a deterrent. I submit that that is an entirely irrelevant argument. The hon. Member must surely know perfectly well that the Royal Commission said that there were arguments on either side of the case and that one could not say with any certainty exactly how many people were, in fact, deterred. We should also remember to take into account the number of murders that are known to the police.

The Amendment, which draws the attention of the Committee to a killing which is a deliberate and calculated act, is talking about murder committed by what is usually called a normal human being and, therefore, a type of person who is in full possession of his faculties and can be deterred by the knowledge that there is a death penalty. The fact that in relation to our population we have really such a small number of murders committed is due not only to fear of the gallows but is coupled with fear of detection, because the skill of detection in this country is very great.

I submit that those who have had the chance to go round the country since the Bill had a Second Reading will perhaps have observed a very real concern in the public mind that people who deliberately commit murder should have no more penalty than, for instance, life imprisonment. The purpose of the Amendment, therefore, is to narrow the field down to those people who deliberately and coldbloodedly—whether they be poisoners or otherwise—take human life, and to say that a unique crime merits a unique penalty.

It is for that reason that I personally welcome the suggestion put forward by the Home Secretary that he would seek to improve the law in exactly this respect. I shall not argue this in detail, except to say that I hope my hon. Friends who sit for English constituencies will have studied with care the law of diminished responsibility in Scotland. It works well north of the Border and it gives the jury considerably wider discretion. If the murderer, in his defence, pleads diminished responsibility, the onus upon the accused is not to establish it beyond reasonable doubt but only to satisfy the jury that the balance of probability in the evidence is in favour of the view that his accountability and responsibility were below normal.

1821
I submit this to the Committee as one example only because my legal colleagues will no doubt argue the other methods in greater detail. So this is one instance of where we can narrow the field of those liable to suffer the final penalty. In passing, may I say that I have sympathy with the view of the hon. and learned Gentleman that it is difficult to try to narrow this field, because we have to translate the advances of medical science into legal terms. We have reached a stage where the fundamental ethical question has to be asked, what is a normal human being? How far is a person accountable for his actions?

As the point of a Committee stage is to try to reach a compromise, and as there is deep concern in this country about what we are doing in Parliament today, I believe that if we do not all try to reach a situation where we have narrowed the field to deliberate acts of murder, we should not be doing exactly what the country wants.

I agree that it is difficult to assess public opinion, and I am entirely of the view that an hon. Member should vote according to his judgment on this issue and not according to what his or her constituents think. I am also of the view that sometimes it is necessary that Parliament should lead public opinion. I also submit to this Committee, however, that there is a great danger in being too far ahead of the public will. If, for instance, things went badly after we had abolished the death penalty, there might be a revulsion in exactly the opposite direction.

Therefore, I appeal to this Committee to pass this Amendment. I do so because I believe it will give discretion to juries, which can be backed by an amendment of the law, to ensure that a calculated murderer receives the death penalty, remembering in all this argument that, after all, the over-riding responsibility of Parliament is to protect the law-abiding citizen.

I wish to support this Amendment. My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), in his interesting and well-argued speech, tried to prove that there was no such thing as degrees of murder, that we must apply logic to this matter, and that it was,
1822
therefore, impossible to make these degrees of murder capital.

I wish to argue that it is not always possible to be logical on these matters. I have heard speeches from my hon. and learned Friends in the House of Commons which were not logical. In this matter, however, I submit that the common man appreciates the difference between cold and calculated murders and many others which should be regarded as manslaughter and which should not involve the penalty of death.

5.45 p.m.

Therefore, I say that this Committee is entitled to try to draw a line between those types included in this Amendment and those other types for which extenuating circumstances can be argued. All of us who oppose this Bill desire to see a reduction in the execution of capital punishment and to see that it is carried out as rarely as possible. The tendency in recent years has been to use the method of reprieve in such cases as mental unbalance, sudden passion and psychopathic cases. Up to now it has been the job of the Home Secretary—as the right hon. and gallant Gentleman told us in February, the onerous task—of seeing whether those considerations apply. It is hardly fair to put such a task upon the Home Secretary as recommending a reprieve to the Sovereign.

Instead, we should try in this Committee to reduce the burden placed on the Home Secretary by endeavouring to improve the definitions between murder and manslaughter, and that is what this Amendment seeks to do. When all is said and done, there are criminal cases which represent hard core cases, in which there are no extenuating circumstances. Although there are not many of them, society must be protected against them. They are the kind of persons represented by Haigh, who murdered a number of people purely for personal gain. There was the famous case of Landru, the "Bluebeard" of France, who committed mass murders. I do not think that either of those men would have been responsive to remedial treatment.

Of course, our Criminal Justice Act aims at treating crime as a disease as far as possible, and to provide for remedial treatment in mental institutions, or in other ways through various courses of
1823
treatment, so that the person concerned can be educated and his environment improved. In many cases, I believe that this is beneficial, but environment is not the only factor.

I believe that the abolitionists make a great mistake in assuming this to be so. The human being is subject to certain natural laws of inheritance and character transmission which are not always subject to environment and education, though it is true that in some cases both these things may have an effect. For instance, throwbacks to primeval types are often created. It is true that "sports" of various kinds, if they are good, may create a genius but, if bad, may create a hardened criminal.

That is the scientific way of approaching this problem. Thus, it is highly necessary to protect society against the hard core criminal. It is often the case that remedial treatment applied early might have an effect but, if left beyond a certain point, it will not do so. Can we leave society unprotected in that case? I do not think that we can. It is up to the abolitionists to prove that, where the jury finds that killing is a deliberate and a calculated act, the person concerned can be dealt with by remedial treatment.

With other hon. Members, a fortnight ago I had the pleasure of meeting a number of distinguished gentlemen, Ministers of Justice and governors of prisons from Belgium, Norway and Sweden. A number of questions were put to them. I asked whether, in their experience, all convicted murderers responded to remedial treatment. I understood at least one of them to say, "Not in all cases". As far as I could see, the others were non-committal. They waxed almost lyrical about those who respond to remedial treatment. I believe it is right to do so, and I believe that under our Criminal Justice Act we can apply that treatment here.

However, I am concerned with those who do not respond to such treatment, and that is why I support the Amendment, because I believe it meets that case. The abolitionists have to admit that there are types of murderers whose killings are deliberate and calculated, and a grave responsibility rests upon them if they give such killers only a life sentence, which means, in fact, nine years only. We
1824
were told by the distinguished gentlemen from Belgium, Norway and Sweden that nine years is the average period during which it is possible to keep a man in prison without deterioration of his faculties. [HON. MEMBERS: "No."] I understood that to be the case. It is a very serious and important matter indeed if we are going to let out people—

There need be no dubiety on this point. It does not depend on the recollection of those who were at the meeting, as I was. In the Royal Commission's Report my hon. Friend will find a full statement of the evidence given by the representatives to whom he has referred, and he will find that it does not bear out the construction that he is now putting upon it.

All I can say is that that is the impression which was left on my mind, and I was careful to listen to all that was said. If there is a stenographic report of the meeting, I should like to see it in order to clear the point up.

I am not a lawyer. I am just an ordinary layman, with common sense I hope. I have been a justice of the peace for the county of Gloucestershire for 46 years, and for four years I was the chairman of a local bench. I remember some of the types that I had before me, though not on charges of murder. Nevertheless, even in the lesser offences there were concerned types of hard core offenders whom one felt would not respond to treatment. I agree that there are some who will. I have often wished it was possible—I think it is now, but it used not to be—to give remedial treatment in certain cases. Nevertheless, I often felt that there were some who would not respond. That is my humble experience, for what it is worth.

I have listened with very great interest to the hon. Gentleman's argument, but there is one point on which I am not clear. Is he contending that, as some murderers might respond to remedial treatment and others not, it would be the proper function of the jury to decide which of them would respond and which would not before concluding whether or not they should be hanged?

Juries have common sense and will see the type of person that
1825
they have before them. [HON. MEMBERS: "Oh."] Certainly; that is so. Moreover, I take it that there will still rest with the Home Secretary the possibility of reprieve if he has evidence that reprieve is desirable. I do not see that this argument reflects at all on what I have been stating.

I urge that the hard core cases should be taken into consideration, and that the Amendment, which is supported by a considerable body of opinion in the Committee, should be accepted, in order to protect society against a few dangerous and abnormal types.

I shall refer later to what has been said by the hon. Member for Gloucestershire, West (Mr. Philips Price). At the moment, I want to go straight back to what are, presumably, the most important foundations on which the Amendment rests. They are what the hon. and learned Member for Gloucester (Mr. Turner-Samuels) described as his four propositions.

The first was that murder was the worst crime and apart from any other sort of crime and should, therefore, be dealt with in an entirely different way. The hon. and learned Gentleman said that to award for murder a sentence of imprisonment, even of life imprisonment, which can be done for crime other than murder at present, meant that a proper distinction was not drawn between murder and the other types of offences. However, as was made clear on Second Reading, if the Bill were passed life sentences for murder would in some instances be real life sentences, and, consequently, we should not have that distinction.

The hon. and learned Gentleman asked what justice was in this matter. One of my hon. Friends suggested that the taking of life should be met by the taking of the life of the murderer. The old principle of an eye for an eye is not one which commends itself to the House of Commons at present. After all, there are at present many convicted murderers who do not suffer capital punishment. It seems to me that the principle enunciated by my hon. Friend does not hold good.

The next proposition propounded by the hon. and learned Member for Gloucester was that if the Committee passed the Bill as it now stands it would be too far in advance of public opinion.
1826
I do not disagree with him. I think that if we had a plebiscite on the subject, at present, as is recommended in some quarters, we might well get an adverse vote on this question, but I think there is evidence to show that public opinion is changing. On this point I would refer to the News Chronicle of 10th February last. It held a public opinion poll on the matter which showed that today 45 per cent. of the people who responded to the poll were in favour of abolition, which compared with only 26 per cent. in favour in 1948. That shows a big change in public opinion.

The hon. and learned Gentleman's final proposition was that capital punishment was an instinctive deterrent to would-be murderers. It may well be in his opinion, and I think that that is the opinion of many people in the country I do not think that sufficient weight is attached to the very measured and careful findings of the Royal Commission, which, after carefully studying the whole problem for four years, came to the conclusion that capital punishment was not a deterrent to a would-be murderer.

In paragraph 59 of the Royal Commission's Report my hon. and learned Friend will read this:
We have been told that the first thing a murderer says when he is arrested is often 'Shall I be hanged?' or 'I did it and I am ready to swing for it', or something of that kind. What is the inference to be drawn from this? Clearly not that the death penalty is an effective deterrent …

As my hon. Friend has not got the volume, will he allow me to
1827
complete the quotation for him? It goes on:
We think it is reasonable to suppose that the deterrent force of capital punishment operates not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community, over a long period of time, a deep feeling of peculiar abhorrence for the crime of murder.

I am grateful to my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) for continuing the quotation, but I still maintain, from my reading of the findings of the Royal Commission, that it is true to say that the feeling of the Royal Commission was in favour of the view that it was not a deterrent, in spite of the final quotation which my hon. and learned Friend has just made.

My final point in dealing with the speech of the hon. and learned Member for Gloucester is a point which has been substantiated, to some extent, by other hon. Members who have quoted some particular cases, like those of "Bluebeard" in France, someone similar who committed nine murders, the case of the "Brides in the Bath" and others. They have suggested that for this kind of murder capital punishment should be retained. I think the point of the abolitionists is that this sort of murderer was not, in fact, restrained from committing these murders by the existence of capital punishment. That seems to be a complete answer to the hon. Member for Gloucestershire, West and his argument that the hard core of murderers should be dealt with by the death penalty.

In conclusion, it seems to me that this Amendment should not be accepted by the Committee, because it destroys the whole principle of the question of the abolition of the death penalty, which has been accepted by the House. I do not believe that we can meet the difficulty in the way the Amendment seeks to do, and I think it should be rejected.

I think that the real answer to this Amendment was given by the hon. and learned Member for Bolton, East (Mr. Philip Bell), who suggested that we had to be very careful
1828
about these words. As far as I can see, these words would make the existing law harsher rather than lead to any alteration in the direction which, as I take the view of my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels), it is now recognised the Committee wants to make.

As I understand, there is a general feeling that some steps ought to be taken to make the law less harsh than it is, but the same thing was said during the debates in 1948. In fact, after the House of Lords had rejected our second Amendment, and during the discussion on the Amendment, Sir John Anderson—as he then was—said more than once that the discussions would be a guide to the Home Secretary in the steps that he would have to take in considering whether he could make a recommendation to the Crown in regard to the exercise of the prerogative of mercy.

My own view is that the carrying of this Amendment would tend to make the deliberations of the Home Secretary more restricted than they are at present. After all, when the Home Secretary is considering his recommendation, he does not have the Statute law in front of him, for there is no Statute which says, "Thou shalt not kill." It is the common law of the land. What the Home Secretary has in front of him in difficult cases is a long series of dicta by judges who have dealt with cases in the Court of Criminal Appeal and even in the House of Lords.

One thing which he has in front of him, which I found very difficult in my time, is the dictum of Lord Simon, which I now understand is regarded as being unsound, that mere words cannot be provocation. I had one case where the words used were such that they would infuriate the man to whom they were used to such an extent that the provocation would be so great that one could hardly blame him if he took very drastic action as a result.

We are being asked to write into the law these words "deliberate and calculated." That is supposed to be the law now, although I think that there has been a harshening of the law through the ages. When I was confronted with an historical document which I was asked to study, I found that the description of murder originated in crimes with which the words "lying in wait" were associated. After
1829
all, lying in wait is clear evidence, I think, of deliberation and calculation, but, of course, the law as at present administered is one in which malice aforethought is now regarded as one of the essentials. How long aforethought? It is sometimes a fraction of a second, yet a case in which the thought has occupied only a fraction of a second has been held as murder, and there are circumstances in which no Home Secretary under the existing law would feel that he could recommend a reprieve in such a case.

Whatever may be the desire to soften the law—and I gather that it is the desire of my hon. and learned Friend the Member for Gloucester and my hon. Friend the Member for Gloucestershire, West (Mr. Philips Price)—it will not be done by carrying this Amendment. As a matter of fact, this Amendment will put into the Statute law as a deliberate decision of the House of Commons three words to which the Home Secretary will have to give very careful consideration when he is to recommend a reprieve.

Surely we are discussing the Amendment on the grounds that there is a definite possibility that the Bill will be passed.

The hon. Member for Ayr (Sir T. T. Moore) hopes that the Bill will not be passed. He may hope that I am going to be disappointed, but let me tell him that I have a similar hope about him. If the Bill is not passed, it does not matter whether these words go in or not, but I think the hon. Gentleman would rather hope to get in these three words in case the Bill is passed, so that, as I suppose he would say, he will have saved something from the wreckage. I am not at all sure that if these three words go in he will not merely have saved something from the wreckage, but will get such a reward for salvage that he will be in a better position for his point of view than he is now. I think that, if I held his point of view, I would vote for the Amendment and then vote for the Bill, because I am quite sure that the law would then be harsher than it is now.

If it is the desire of the Committee—as I understand it to be after all this discussion since 1948—that the law shall be less harsh than it is now, that there
1830
shall be fewer hangings than there now are, and that the Home Secretary, even if the law of murder remains, shall have more elbow room, then I implore hon. Members not to vote for the Amendment which, whether the Bill is carried or not, will be an indication of the feeling of the Committee, because I am certain that it cannot lead to any softening of the law in the circumstances which we are now considering.

The difficulty in which the Committee is placed has come from the speech of the hon. Member for Nelson and Colne (Mr. S. Silverman), who said that the speech he was making on this occasion would apply to all Amendments. He advised his hon. and right hon. Friends to resist the Amendment as a sign and token that they would resist every Amendment.

Not quite that; nearly that, but not quite that. Of course, I shall listen to the arguments. I was trying to say that every Amendment about the principle of degrees of murder, or special categories of murder, seemed to me to be unacceptable for that reason.

It may be that that was one of the arguments which the hon. Member intended to use, but he went very much wider than that in his speech and recommendations to the Committee. He advanced certain general considerations which inevitably we have to take into account in the argument we are now conducting. It is undoubtedly a very grave argument. I speak as one who has had the responsibility of being Secretary of State for Scotland and, therefore, been in a position to consider, if such a case did come up, whether mercy should be granted, to consider these great problems not in the abstract as concerning other people, but with the direct and poignant feeling of one who might at any moment be bearing that responsibility.

In the first place, I think that it is possible to soften the law. The arguments which have been brought forward to approximate the law of England to the law of Scotland are good arguments and will succeed in softening the law, because, in fact, it is generally accepted that in Scotland there have been proportionately far fewer executions than in England. Many of the proposals which
1831
are brought forward to deal with this are not theoretical, but tried and tested remedies for the purposes which we all have in mind.

The hon. Member for Nelson and Colne was taking a far stronger line. He was taking a line that hanging was morally wrong. That is one of the arguments which we have to consider on these Amendments, because it was the argument which the hon. Member advanced as a general contention and upon which hon. Members will be subsequently asked to vote. He launched a most dramatic passage about the whole apparatus of what he called the gallows, the black cap—

There should be no misunderstanding. If I am responsible, I regret it, but I should like to clear it up. As hon. Members know, I want to see the death penalty abolished. All I am saying is—and I thought it was fair to say it to the Committee earlier—that any Amendment whose object was to do what the House of Commons decided on the last occasion not to do, that is to say, to have a series of special categories in which the death penalty is retained, would not commend itself to me. I intended to say no more than that and I thought that I was quite clear in what I said.

The hon. Member went far wider than that. I want to refer to one point which he made at somewhat greater length. I merely say that we are considering not merely this Amendment, but whether any Amendment should be made in the Bill. The existence of a milder form of the administration of justice north of the Border indicates that Amendments can be properly made in the administration of the law. We from the Northern Kingdom intend later to move an Amendment seeking to remove Scotland from the operation of the Bill on the ground that we have succeeded in doing what the Committee wishes to do in the case of England; but I will deal with that Amendment when we come to it. I shall be interested to know whether the hon. Member will be willing to support us in that Amendment.

The hon. Member is entitled to say, "Wait until we come to it", but from his gesture of dissent, I am not very confident of obtaining his vote in the Division Lobby when we reach it.

6.15 p.m.

That brings me to my first point, whether it is possible to make the amendment in the law along the lines which we desire. I think that it is. We should, therefore, carefully examine the Amendment to see whether, as the right hon. Member for South Shields (Mr. Ede) thought, it would make the law more harsh. That would weigh with me in my attitude to the Amendment, but with the view that the death penalty should be abolished, on the ground that it is morally wrong to inflict it, I would not go any length with hon. and right hon. Gentlemen opposite. Many of the arguments which have been advanced in support of that have been totally misleading.

Hon. Members have referred to other countries, and the hon. Member for Nelson and Colne asked us to consider the injury to the reputation of Britain in the eyes of other countries if we appeared to retain a penalty with which they had dispensed. Many countries have been quoted in that respect, for instance. Belgium. However, capital punishment has not been abolished for much the larger proportion of the people under the sway of the Belgian Government. Do hon. and right hon. Gentlemen say that the death penalty has been abolished in Belgium's great empire in Africa?

I have made such inquiries as I can—it is not easy to find accurate information—but I have found that in the Belgian Congo, capital punishment for premeditated crimes has been maintained. I should be very astonished if, this afternoon, any assent were given in the Committee to the general contention that the death penalty was morally wrong in Belgium and not in Africa. Therefore, if it is morally wrong, it should not be inflicted in any territory under the sway of Her Majesty the Queen.

That is the argument which is being put forward; otherwise, the
1833
argument is that it is right to hang black men but not white men. That is not abolition of the death penalty; it is infliction of the colour bar.

There are certain things which we agree are morally wrong and they are wrong throughout all the territories. Slavery is morally wrong and is not legal in any of the territories ruled by Her Majesty the Queen. Torture is morally wrong and it is as wrong to torture black men as it is to torture white men; and if there are any instances of torture being applied anywhere in the territories under the Crown proceedings are taken with the utmost vigour against those responsible.

I remember visiting Kenya with a Parliamentary delegation and we wrote a report which was most strongly condemnatory of certain practices.

On a point of order. For the first time in many years I find myself in conflict with the way in which my right hon. Friend is arguing. It seems to me that what we are discussing this afternoon is a tariff for murder which the criminal can study carefully in selecting his punishment. Now we hear from my right hon. Friend about the customs of hanging or not hanging in distant Colonies. I must confess that I cannot see what that has to do with the subject before the Committee.

It was far from my intention either to prolong the discussion or to be out of order. I was merely dealing with the argument advanced by the promoter of the Bill in his first argument on this Amendment, that this was something morally wrong for which the reputation of this country was suffering in other lands which had themselves abolished it.

It seemed to me very germane to that argument that in many of those territories such a provision in the law has not been abolished; and, as far as I understand, nowhere has it been suggested during this debate that that argument should be extended and that what we are asked to consider immoral should be abolished in our other
1834
territories. I cannot see the logic in saying that what is wrong to be done in London or Edinburgh is right to be done in Nairobi or Lagos.

Therefore, I do think we should consider the Amendments with the object in view of dealing with the situation with which we desire to deal, namely, the amelioration of the law. I do not think that the Committee by any means supports—certainly not by any large majority—the view that the death penalty is morally wrong and should be abolished on those grounds. The argument therefore comes down to grounds of expediency, and on that I think that the discussion can well go on.

I wished to speak very briefly on this question and say that I do not think that the ground of argument taken by the hon. Member for Nelson and Colne, the promoter of the Bill, in his attitude to the whole series of Amendments before the Committee was one which I could support; and particularly is that so with regard to this Amendment.

I should like to say a word in view of the observations made by the right hon. Gentleman the Member for South Shields (Mr. Ede) and the question raised by my right hon. Friend the Member for Kelvingrove (Mr. Elliot). The right hon. Member for South Shields expressed the view that if this Amendment were passed and the Bill were altered in the manner contemplated, it would mean that the law would operate more harshly, if I followed it aright, because the area for the exercise of the Royal Prerogative would be reduced.

I can only say, after reading the Amendment and studying its effect, that it would have no effect in reducing the area within which the Home Secretary could recommend the exercise of the Prerogative.

I do not propose to weary the Committee with a Second Reading speech. I had one ready on the last occasion when this Bill was debated in principle, and I did not get the opportunity to deliver it; but I shall not attempt to deliver it now.

The speech of the right hon. Gentleman the Member for Kelvingrove (Mr. Elliot), for whom the Committee has high respect,
1835
was, I am bound to say, a mass of complete irrelevancies. There was in that speech, as far as I could understand, only one point which had any relevance at all to the Amendment now before the Committee. Unlike most hon. Members who have taken part in this debate, I propose to confine myself more or less solely to the Amendment, because, judging from the speeches made in favour of it as well as a number of the speeches opposing it, the terms and meaning of the Amendment are not, I feel, understood by the Committee.

The noble Lady the Member for Aberdeen, South (Lady Tweedsmuir) spoke about giving the jury a discretion. There is nothing there which gives a jury a discretion. What the Amendment does is to impose upon the jury a duty additional to what it now has; in addition to finding, on the facts, whether an accused is guilty or not guilty, the jury is asked to find, also on the facts, whether an accused committed the crime with deliberation and with calculation.

I will ask hon. Members of the Committee to give their minds to the meaning of these words. I feel a certain temerity in quarrelling with so eminent a legal luminary as the Attorney-General, but, contrary to what he said a few moments ago, I think the effect of this Amendment would undoubtedly be to narrow the field in which the operation of capital punishment would come.

While saying that, I would point out that it is inevitable also that its effect must be that the ratio of executions to condemnations would increase, because no Home Secretary, faced with verdicts from juries containing this added element of culpability—deliberation and calculation—would be likely to extend the same measure of sympathy when recommending the exercise of the Royal Prerogative. The tendency would, therefore, be to increase still more the proportion of people condemned who were, in fact, hanged.

Does the Committee really desire that, in this day and time, in the year 1956? The burden of most speeches made was that there was, on the part of the Committee—and I include the speech of the hon. and learned Member for Gloucester (Mr. Turner-Samuels), who moved the
1836
Amendment—a desire to soften the operation of capital punishment.

I come now to the second matter upon which I think there was great misunderstanding of the terms of the Amendment. The Amendment says that the death penalty will be abolished except where the jury finds expressly that the killing was a deliberate and calculated act. Most hon. Members assumed at once that that would confine the death penalty to the most heinous crimes. But will it?

My hon. Friend the Member for Oldham, West (Mr. Hale) mentioned mercy killings. We all know about mercy killings. I tried for years to have that quite horrible thing stopped which happens now, the formal condemnation to death by a judge wearing the black cap, in that horrible ritual which he utters, of a poor, distraught woman in the dock who, as everybody save the woman herself knows, will never be hanged. It is laid upon the judge as a duty, there being a verdict of murder, that he must condemn her in that way. I fought for years to have it changed.

The difficulty I found myself faced with is the same difficulty that I find in this Amendment. Every Home Secretary to whom I brought the issue always told me that it was quite impossible to put into legal terms any kind of formula which would cover such cases. My pressure, therefore, got me nowhere, because of the difficulty of definition.

That is what is involved in the argument of the hon. and learned Member for Gloucester. I ask the Committee to watch this matter carefully. In the speech of my hon. and learned Friend there were a great many highly emotional passages about the rapist who kills in pursuance of his rape. He talked in terms of beastly and horrible crimes being the crimes which this particular Amendment would inevitably catch. But will it? Every lawyer knows that by far the great majority of crimes of rape are anything but premeditated or deliberate. They are usually crimes perpetrated on the instant, without deliberation and without calculation. We have it, therefore, that those horrible crimes, about which he tried to excite the emotions of the Committee, have no relevance at all.

No; the hon. and learned Gentleman was asked in courtesy to give way more than once, and he steadfastly refused. I shall, therefore, do what I do not normally do, refuse to accord to the hon. and learned Gentleman the courtesy of giving way.

The Committee will know whether I am misrepresenting the hon. and learned Gentleman. His speech, his very full speech if I may say so, is sufficiently within the recollection—the painful recollection—of hon. Members.

Now may I proceed to deal with the point I was discussing? There is the general misconception running through speech after speech that this Amendment will catch the bestial murderer, the man or woman who commits the worst crimes. I submit that it will do nothing of the sort. But, almost inevitably, it will catch a large number of other culprits not considered by any of us in the present state of public opinion to be the authors of the worst and most heinous crimes.

My hon. Friend the Member for Oldham, West interjected earlier in the debate and reminded the Committee that there were mercy killings. We all know of cases of this kind—I was referring to one a minute Or so ago—in which perhaps the mother of an idiot child had watched the sufferings of that child for years on end and, finally, had decided to put an end to the misery of that child. That would be a typical mercy killing. In case after case of that kind such a crime has been committed with the utmost deliberation. It has been committed with pure calculation and with a result which we should applaud, though perhaps with certain reservations. But nevertheless, were this Amendment accepted, such murderers would be condemned to death.

Let us consider a case which occurred only a month or so ago, of a young student who was desperately in love with a young woman. Something arose which was never clear from the records which
1838
appeared in the newspapers. He went to the young woman one day and shot her dead. Immediately afterwards he turned the revolver upon himself and shot himself. That was a tragedy of love, a crime passionel if ever there was one. The state of that young man and the state of his victim must have created sympathy in the hearts of everyone. But he would be condemned to death under the terms of this Amendment, because the day before he committed his crime he purchased the revolver and the necessary ammunition—[HON. MEMBERS: "And a licence."]—and a licence to hold the revolver, as I am reminded, and, therefore, there was, clearly, deliberation and calculation on his part. That young man, had he lived, would have been one of those condemned to death under the terms of this Amendment.

Does any hon. Member of this Committee really want to see the law of murder reduced to that kind of rigidity? One of the great objections raised, not only by the Royal Commission, but by the Select Committee in 1930 and other previous inquiries was to the rigidity and inflexibility of the law of murder, and this Amendment would make that rigidity still worse. For these reasons, I ask hon. Gentlemen, and especially the right hon. Member for Kelvingrove—who said that if he thought this Amendment would make the law harsher, he would vote against it—to consider the arguments which I have advanced. If the right hon. Gentleman does that with an open mind, I am sure that we shall find him voting against this Amendment.

Different people no doubt face this problem from different angles. To some, the question of capital punishment is a question of principle depending on the taking of human life, and they cannot consider any Amendment which makes any exception in the Bill. To me, it is a question whether capital punishment is necessary and useful in present-day Britain. On that I can conceive that different people may have different points of view. I should not altogether agree with the hon. Member for Nelson and Colne (Mr. Silverman) that during the Committee stage of this Bill there can be no meeting of minds or blending of points of view; but I should certainly not choose this Amendment as any sort of meeting ground.

1839
I am convinced that no definition which is based on culpability will work. Attempts to frame such a definition have been made for over a hundred years. There was one which was not very dissimiliar to this about eighteen years ago, and it found no favour with the Parliament of that day. This is, after all, an attempt to write "premeditation" in new words into the law of murder. The reason why that attempt is undertaken is because the requirement of "malice aforethought" has, in the course of time, come to have a very technical meaning. By merely replacing them with the new words, "deliberate and calculated" we should effect no useful change. The only result would be that the Bill would leave the House without anyone having the faintest idea of its practical effect when it got into the hands of different juries in individual cases.

I cannot imagine how it would operate at all with a unanimous jury verdict rule. That is something which is not operated in Scotland, where they have a majority

§
verdict. But in my estimation, before very long the words "deliberate and calculated" would soon come to have as artificial a meaning as "with malice aforethought." In at least one country where a new attempt was made to define premeditation, it was eventually ruled that one second was enough to allow for premeditation; and then, of course, we are merely back where we started, with the difference that we should have a statutory phrase instead of a common law one.

§
I will not repeat what has been said by the hon. Member for Norwich, North (Mr. J. Paton) about the invalidity of this definition for picking out the worst kind of murderer. That is a defect inherent in every definition based upon degrees of culpability and they will not work in practice. For those reasons, I shall vote against the Amendment.

It may be convenient to the Committee to take with this Amendment the following three Amendments:

In page 1, line 9, leave out "for life" and insert:
during the lifetime of the offender or such lesser sentence as the court may determine".
In line 9, at end insert:
and no person who has been sentenced in accordance with this subsection shall have any part of the sentence remitted".
In line 9, at end insert:
or such other sentence as the court may in the circumstances deem proper".

On a point of order, Sir Rhys. Am I to understand that the Amendment in my name, to leave out "for life" and to insert the words on the Order Paper, will be discussed at the same time as the Amendment which is being moved by the noble Lord?

This Amendment is a narrow one and it does not affect the main principles which we have been discussing and shall return to in the course of the Committee stage. It is designed to prevent a court from uttering stultifying and self-frustrating words in passing sentence. The hon. Member for Norwich, North (Mr. J. Paton) referred to the occasions when the judge donned the black cap and pronounced sentence of death, although the whole court knew that there would be an instant reprieve. If, carried, the Bill will abolish that device, but it will still allow a judge to pronounce a sentence which the whole court knows will never be carried out—the sentence of imprisonment for life.

As an example, I take the case of the young consumptive whose wife complained about his behaviour, concealed his sources of medicine and milk, and then confronted him with the knowledge that for some months past she had been cohabitating with another man. He took
1845
his penknife from his pocket and struck her in the chest. He was condemned to death, and was reprieved. We do not know what his future will be, but many prison reformers and people with knowledge of crimes of that type of provocation consider that a sentence of not more than three years' imprisonment would expiate the crime. Is the court to continue to pronounce a life sentence in a case like that?

The purpose of the Amendment is to pass the ultimate judgment of the nature of the sentence from the court to the Executive. I say unashamedly that I am one of those who believe that with the processes of prison reform now at work and the knowledge which the medical profession has of the character of crimes, and of offenders, and so on, it is wholly competent, just and wise to allow the determination of sentences of this sort to be carried out through the processes of the reprieve action and the Royal Prerogative. I unashamedly put forward the Amendment; indeed, I very much hope to hear what arguments can be directed against it.

I am glad to have the opportunity of presenting some arguments against my hon. Friend's Amendment. He says that it deals with a narrow issue. It is not a narrow issue; it is an issue of considerable importance. Although the main principle of the Bill seems to have received repeated acceptance in the House and in Committee, this issue is of considerable constitutional importance. I certainly would not like it to slip through as did a Private Bill dealing with some waterworks, the last paragraph of which provided that the town clerk's marriage should be dissolved. It was included in a Bill which no one read.

The Bill is a bad one, because it provides a uniform penalty. That is one of the reasons for opposing it. Many hon. Members have paid considerable tributes to the members of the Royal Commission and their Report. They continually ask us to pay attention to that Report. It is significant, therefore, that the first of the conclusions to which the Commission came was that:
The outstanding defect of the law of murder is that it provides a single punishment for a crime widely varying in culpability.
One criticism of the Bill is that it not only seeks to abolish a penalty which
1846
many people believe, regretfully, to be one which should be maintained, but also reproduces evil for evil. It would make bad law by poviding a uniform penalty in which there was no discretion in the court, and where the matter was left to the discretion of a mysterious Executive.

In this House one hears criticisms of courts and judges, let alone lawyers, but in the country one hears criticisms of the Executive very much more often than of the justice and fairness which the ordinary citizen meets at the hands of courts of law. The Amendment hands over to the Executive discretion which should be in the hands of the courts. That is why my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) tabled the Amendment, in page 1, line 9, to leave out "for life" and to insert:
during the lifetime of the offender or such lesser sentence as the court may determine".
In these days, where a man is sentenced to death and there is a uniform penalty, that is the end of the matter because, up to now, the law has had one penalty for the crime which, it is believed, merits the greatest penalty which can possibly be given.

In every other criminal case, however, there comes a time, after the pronouncement of the verdict, when the court has before it those persons which the defence may wish to call in mitigation of the offence which has been committed. Witnesses can be called to give their evidence on oath and, if the counsel for the Crown so desires, he can cross-examine them. The Amendment suggests that that process should cease, and that there should still be merely an inquiry by the Home Secretary behind closed doors, with none of the publicity which the Lord Chief Justice has said is the very life-blood of justice.

We have always believed that persons who gave evidence upon which a man's conviction and then his sentence was determined should be prepared to go into the witness box and give that evidence upon oath. At present, when it is left to the discretion of the Home Secretary, many defence solicitors wonder what kind of evidence should be presented to my right hon. Friend to help him make up his mind whether to recommend a reprieve. Indeed, he and I have had correspondence upon the subject. I have argued that defence
1847
solicitors should know what it is that the Home Secretary takes into account when recommending whether or not there should be an exercise of the Royal Prerogative.

If that system is to continue, and if imprisonment for life is to be the only penalty for murder, why should it not be left to the discretion of the judge to determine what sentence should be imposed? He hears the whole case, and also the evidence of doctors and character witnesses who are called for the defence after the verdict has been pronounced.

7.0 p.m.

Many cases have been mentioned in the debate where persons have been convicted of murder although everybody knew they would be reprieved, and they spent a very short time in prison. Why should not the judge be able in cases of that sort to impose a sentence of six months' imprisonment? The Amendment in the name of my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) would make it possible for persons to give evidence to show why the prisoner had been led to commit the crime, and to do so outwardly and publicly in court.

A document was sent to me setting out the men and women executed in England and Wales between 1949 and 1953. I have seen a similar document setting out those who have been reprieved. Why should it not be right and proper for everybody to know on what grounds and evidence the Home Secretary has exercised his power to recommend reprieve? Would it not be in the interests of hon. Gentlemen who believe in the abolition of capital punishment that those grounds should be set out to show the system by which medical officers of health and specialists can offer evidence as to the conditions of the prisoner's mind? Why should that not be made public? Why should not police evidence, gossip and so on, all of which is presented to the Home Secretary, be taken publicly into account?

My objection to the noble Lord's Amendment is that it gives discretion to the Executive, which happens in no other crime. It takes from the court its traditional rôle of settling a man's punishment, which should be exercised publicly, according to evidence which can be challenged and which is given upon oath.
1848
For those reasons, I oppose the Amendment of the noble Lord and direct the attention of the Committee to the Amendment in the name of my hon. Friend the Member for the Isle of Thanet.

I support my hon. Friend the Member for Epsom (Mr. Rawlinson) in opposing the Amendment moved by the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke), and I urge the Committee to support the Amendment in the name of my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies).

When the House of Commons decides that capital punishment should be abolished, it is obvious that the punishment for certain degrees of murder should be grave and consist of a very long term of imprisonment, possibly for natural life. The abolitionists should face that situation and realise that a longer term of imprisonment will have to be provided. One of the great difficulties about the law of murder has been that a uniform punishment has been prescribed although it is clear that there are many degrees of murder, varying so much that one cannot say that each murder deserves the same form of punishment. It is clear that some murderers will have to remain in prison for the term of their natural lives while others deserve only a very short term of imprisonment, and some may deserve none at all.

One of the great difficulties confronting lawyers has been to find degrees of murder. I think it is now generally accepted that it is impracticable to do so, because insurmountable problems are created. The Amendment in the name of my hon. Friend the Member for the Isle of Thanet presents an opportunity to get over this difficulty. If the sentence is left to the court it can hear in the normal way all the evidence in mitigation of the offence, and can then pass the appropriate sentence.

There has been a lot of talk about the deterrent effect of capital punishment. Some people are very worried that the professional criminal may find the unique deterrent of capital punishment removed, in regard to his activities. I am satisfied that the first sentence of thirty years' imprisonment will have a greater deterrent effect on the criminal
1849
classes than any sentence of death has had in the past. The criminal classes understand imprisonment. Once they find determination in the courts to give long terms of imprisonment the deterrent effects upon them will be great.

Because I think that the Amendment in the name of my hon. Friend the Member for the Isle of Thanet deals with two very ticklish problems, and offers a practical solution to the problem of degrees of murder in the form of a sentence passed by the court—

Does the hon. Gentleman realise that a crucial problem, where a degree of insanity is involved which is not certifiable, is the extent to which the prisoner responds to treatment while in prison? Is it not stupid to condemn him to a fixed term of years without knowing at what time in that period he may respond to treatment, in some cases shorter and in other cases longer than the term of imprisonment?

I am quite happy about leaving the matter to the courts. If they give too long a term the Executive can step in. [HON. MEMBERS: "Oh."] I am opposed to the noble Lord's suggestion that the length of the term should be left in the hands of the Executive.

I do not think that any of these Amendments would improve the Bill. I follow the purpose of the Amendment moved by the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke), but the phrase "Her Majesty's pleasure" is already operative in the law with regard to persons held to be mentally unanswerable at the time for the act of murder. It would be undesirable to confuse the two classes of murder.

In any case, the Amendment is unnecessary because the power of advising on the exercise of the Royal Prerogative rests with the Secretary of State. Presumably he will remain entitled at any time during the imprisonment to decide that he should advise release. It all depends upon the circumstances of the case, but it seems to me that the Amendment does not change the situation. The Secretary of State still has the right in any case to advise about release, subject to the other Amendments to which I will refer later. The noble Lord's Amendment
1850
is unnecessary because its purpose is already provided for in constitutional practice.

The right hon. Gentleman is right that the Amendment makes no change in the situation. I am seeking to prevent the court from uttering stultifying words. I gave the example of the case in which the whole court knew, as the judge pronounced sentence of life imprisonment, that the murderer would be released, after the reprieve, within two or three years.

The Committee will recall that on Second Reading I said, while supporting my hon. Friend's Bill—and I still support it in principle—that there might be very grave cases of murder in which it would be right for life imprisonment not only to be imposed but to be carried out. There might be extreme cases in which the Home Secretary came to the conclusion that it was not safe to release the prisoner.

I do not want it to be assumed that in no case at all can such a sentence be carried out, although I hope that any Home Secretary would use discretion as to if and when an appropriate point had come at which the prisoner could, with safety to the public interests, be released. I therefore feel that the noble Lord's Amendment does not improve the Bill, nor is it necessary.

I turn, next, to the Amendment of the hon. Member for the Isle of Thanet (Mr. Rees-Davies) and others—that we should insert:
during the lifetime of the offender or such lesser sentence as the court may determine.
With great respect, I do not think this is the way to do it. I gather that this would be the decision of the judge after the verdict, not the decision of the jury. If it were the decision of the jury, it would place juries in a very difficult position.

I was arguing that, as in other crimes, such as where there has been attempted murder or rape, at the conclusion of the jury's verdict the judge then addresses his mind to the sentence which should be imposed. He hears evidence called on behalf of the defence. It could be evidence from doctors or from
1851
witnesses as to character. Having heard all that evidence, after the verdict has been reached, he decides the sentence which should be imposed.

I still do not quite follow the point. The charge is murder. There may be associated circumstances which have some relationship to the charge, but the purpose of the Amendment is to enable the court to make the sentence either life imprisonment
or such lesser sentence as the court may determine.
If that decision is reached by the trial judge, which, I imagine, is the purpose of the Amendment, it would be the case that different judges might reach different decisions. This matter is better left in the hands of and in the discretion of the Secretary of State, who can take all the other cases into account and see whether he is following a policy which is broadly defensible and approximately similar in principle. I think that this Amendment is more objectionable than the Amendment of the noble Lord.

Am I in order, Sir Rhys, in referring to the third Amendment, concerning remission of sentence?

On a point of order. It might save a little discussion if I asked whether any attention has been given to the form of this Amendment. If it means that we are legislating in such a way as to limit the Royal Prerogative, presumably it is out of order.

I found it difficult to understand how we could legislate to the effect that a person who has a court sentence shall have no part of that sentence remitted—a mandatory power. The exercise of the Royal Prerogative can only be in the direction of a remission of sentence, and there appears to be a conflict between the two. In that case, I wondered whether the Amendment was in order.

I can see which way the argument is going and, with great respect, I think there is substance in the point of order raised by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). On the face of it, the Amendment impinges on the exercise of the Royal Prerogative, and that being so, it would be unwise for the Committee to pass it. In any case, to provide that no part of the sentence can be remitted seems wrong, because there may be circumstances in which part of the sentence ought to be remitted. This is an improper interference with the Home Secretary's discretion.

The objection to the fourth Amendment is the same as that which I raised to the earlier Amendment. This Amendment asks that there shall be
such other sentence as the court may in the circumstances deem proper".
The same objections arise of inequality in the decisions between different courts. My submission is, therefore, that it would be unwise for the Committee to pass any of these Amendments and that in these respects the Bill in its present form is better than it would be if it contained these Amendments.

It might save time and be an advantage to the Committee if I give my views on the four Amendments, which raise points of considerable importance. The effect of at least one of the four would be to abolish the power of the Secretary of State to release on licence a prisoner serving a sentence of life imprisonment and to substitute for this discretion either a fixed sentence or a sentence literally for life.

The Secretary of State's power to release on licence is a statutory power and is quite distinct from the exercise of the Royal Prerogative. They are quite different things. As the Committee knows, the Royal Prerogative has the effect either of reducing a sentence or, in some cases, a free pardon, wiping out the conviction altogether.

The advantage of that is its tremendous flexibility, which, the Committee will agree, is very important. It enables the length of the sentence to be adjusted according to the different degrees of culpability which distinguish one murderer from another and, which is very important, to the progress which different murderers make when they are in prison. I do not have to remind the Committee that murders differ widely in their heinousness.

Will the right hon. and gallant Gentleman help those of us who are not lawyers by giving an exact legal definition of "life imprisonment", which seems now to be recognised as a period of 20 years? This is a matter affecting the Amendments.

I do not need to remind the hon. Member that I am not a lawyer either. "Life imprisonment", I understand, means life imprisonment. One of the advantages of the system now obtaining is that there is the flexibility which, according to the various degrees of murder and so on, and the behaviour of murderers while under sentence, enables the Home Secretary to use the Prerogative or the licence.

The Committee will readily appreciate—it has been referred to on more than one occasion today—that there is a vast difference between, say, a mother who
1854
murders an imbecile child to whom she is utterly devoted and a cold-blooded poisoner who murders purely for gain. The whole Committee will agree that there is a tremendous difference. But those who would make life imprisonment a sentence literally for life would be drawing no distinction between the two.

It would be retrograde and inhuman to take away the power to release the mother in order to make absolutely certain that the poisoners served literally for life. If the death penalty for murder, or for most kinds of murder, were abolished, the variety of prisoners imprisoned for murder would be even greater than it is today. Therefore there would, I suggest, be need, not for less flexibility, but for more flexibility.

At present, the average reprieved murderer serves about nine years. Over a period of about 50 years, the average has been nine years. It has been a good deal less in recent years and in some instances it is a good deal less than nine years. Some, particularly some whose release would be a danger to the public, serve considerably longer. If capital punishment is abolished, it would be no less necessary to be able to release after a comparatively short period those who are now released after nine years or so, but it would become necessary to determine for how long the more serious offenders must be kept. I do not think that detention for life, which to a man who is convicted when young could mean 30 or even 40 years, can be justified unless the prisoner is still a danger on release.

Murderers who can never be released will, of course, be a minority, but it would not be possible to be certain which persons it would be necessary to keep for life or until old age until they had been in detention for a considerable time. That is one of the most important points of all. They would have to be detained for some time before that could be decided. For this reason, I do not think it would be wise to transfer the discretion from the Secretary of State to the court.

Where so much depends on how a prisoner shapes when he is in prison, a court cannot, in the nature of things, know what is the appropriate sentence. How could a court, in the case of a young man in, say, his early 'twenties, when he
1855
was before the court, know whether it would be necessary for the protection of the public to keep him in prison for the rest of his life or whether 20 or 30 years would be sufficient? How could the court tell? It seems to me that this responsibility, heavy as it is, should still remain with the Secretary of State.

I must confess that I see no advantage in the Amendment of my noble Friend the Member for Dorset, South (Viscount Hinchingbrooke) to substitute
to be detained during Her Majesty's pleasure
for "to imprisonment for life". Indeed, I see some disadvantage in it. Detention during Her Majesty's pleasure is, in fact, detention until the Secretary of State authorises release. If the Amendment were accepted, it would still be necessary to have some provision for release on licence at the Home Secretary's discretion.

As the Committee knows, detention during Her Majesty's pleasure is at present reserved for persons under the age of 18, who cannot be sentenced to death, and for the larger class of those who are found insane on arraignment or guilty but insane. There seems to me to be virtue in distinguishing in a case of adult offenders by the formal difference of sentence between those who are found by a jury to be insane and those who are not. That is a very great advantage in that respect.

I hope the Committee will not mind my intervening at this juncture, but I thought it important that the position should be put. I trust that hon. Members will not press this and the other three Amendments.

The whole Committee will, I am sure, be grateful to the right hon. and gallant Gentleman for coming into the debate at this stage, and also for an extremely helpful speech. It sometimes happens that when a Minister is in charge of the Committee stage of a Bill he gets up and says to the Committee, "I am not closing the discussion, but do you not think that the Committee might now consider coming to a decision?" I am not a Minister, and, therefore, I cannot possibly use that formula. Nevertheless, I suggest to the Committee that there are a lot more Amendments on the Notice Paper and
1856
that we can possibly dispose of this Amendment now.

For my own part, for the reasons given by the Home Secretary and by my right hon. Friend the Member for Lewisham, South (Mr. H. Morrison), which I will not weary the Committee by attempting to summarise or repeat, I would be against all except the first of the Amendments—that is, the Amendment moved by the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke)—with which I confess I have considerable difficulty. On the whole, however, I think that in that case, also, the Home Secretary's argument against the noble Lord was almost conclusive.

The noble Lord has already conceded that no actual change in the administration of the law would, in fact, be involved by his Amendment. Therefore, as far as I am concerned, I should prefer this Amendment and the others not to be incorporated in the Bill.

It would appear that if the hon. Member for Nelson and Colne (Mr. S. Silverman) wishes to entertain the Committee for a long period he should be entitled to do so at whatever length he pleases, and as often as he chooses, but that if, on the other hand, the hon. Member who happens to pose an Amendment seeks to rise throughout the debate, he should be guillotined before he has the opportunity to explain his Amendment. I do not believe that that will commend itself to hon. Members on either side of the Committee.

I wish, first, to draw attention to the Amendment which appears in the name of my noble Friend the Member for Dorset, South (Viscount Hinchingbrooke). It goes a great deal further than anybody has so far made plain, with the exception of the speech by my hon. Friend the Member for Epsom (Mr. Rawlinson). The noble Lord is in favour of great traditions and, in his speeches, usually exercises restraint and care in the preservation of those traditions. In this case, however, he would seek to perpetrate a constitutional enormity.

7.30 p.m.

Fortunately, the discussion on this matter is not one in which there is necessarily a divergence of view between abolitionists and those in favour of retaining
1857
the death penalty. It is, perhaps, the one matter on which there need be no cleavage between them at all. However, it raises the very important issue of the Executive versus the judiciary, and raises it in a way which is of great importance. This is the first occasion, so far as I can recall, in the history of this country on which an Amendment has been proposed to take away entirely the power of the courts to impose sentence for crime, a power which traditionally is theirs. For that reason alone that Amendment, in my view, is one which cannot be supported.

What the Amendment seeks to do is to impose an unfettered and administrative discretion entirely in the Home Secretary without any sentence imposed by a court whatsoever. That seems not to have been understood, and to that extent it seems to me the Amendment has been misconceived, and on this matter I must differ from both the Home Secretary and the right hon. Gentleman the Member for Lewisham, South (Mr. H. Morrison), a predecessor in my right hon. and gallant Friend's office.

They failed to appreciate one important point. It is this. While it is quite true that the Home Secretary at the present has, as all Home Secretaries up to now have had, the absolute, prerogative power to review any decision whatever which the court may have decided, the Home Secretary will still have that power even if the Amendment which I have put down were to receive the blessing of the Committee. A mistaken understanding of the Amendment has run through the whole argument so far, and I invite my right hon. and gallant Friend and the right hon. Gentleman the Member for Lewisham, South to give a little thought to the points I am now about to make.

What I am asking by this Amendment is that the court should determine what the sentence shall be. The court should
1858
have the power to impose a sentence of up to thirty or forty years' imprisonment. It should also have the power to impose a sentence of three or six months' imprisonment. In the case of a murderer such as Haigh, no doubt the court, if this proposal were acceptable, would impose a sentence of forty years.

On the other hand, I remember a case in which I was concerned some years ago. It was that of a young officer who saw his wife in circumstances which led him to believe that there was adultery, and in the heat of the moment he shot the man on the spot. That case was not within the definition, for the accused man was found guilty of murder, but, in those circumstances, he was reprieved and released within a very short space of time.

The proper place for this first to be determined is the court. In every case, the court can give the most careful consideration to the evidence available at that time—I thoroughly agree with the observations made in this respect—in considering the sentence. That is right. At the time of a particularly heinous and villainous murder the court may well pass a very long sentence. It is right it should do so. However, the power would still remain in the Home Secretary to be able to reprieve. It was an erroneous statement of fact which my right hon. and gallant Friend made when he said just now, about the Amendment in my name, that it is one which would transfer the discretion of the Home Secretary to the courts. It would not do that. I am quite emphatic about it.

It would do this. It would give the traditional duty to the courts to decide sentence first; and that is right. Let me give one or two examples in support of this. Many cases I have had to deal with have been unpleasant cases of homosexuality, of gross indecency, and those classes of offences. When acting as counsel for the defence in a case of that type it is frequently one's duty to put before the court a psychiatrist's report, medical evidence, and the complete history of a man from his schoolboy days and including his schoolmasters' reports, to see his background, to decide whether the man should not be sent to prison but should, on his undertaking to enter a suitable institution, be bound over by the court.

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The courts would still be able to make those decisions, and they would still be able to have the whole of the medical evidence before them, and they are in a much better position to consider it than the Home Secretary is, because the evidence before them can be cross-examined and tested by men whose duty and experience it is to deal with evidence. It is not part of the duty of the Executive to decide what is the right or the wrong state of a set of circumstances in litigation.

What the Amendment of my noble Friend seeks to do is to give to the Executive the entire question of deciding mitigation; not merely medical evidence, but mitigation; and it is not the job of the Executive. This is an endeavour by my noble Friend—I am quite sure he did not mean it—to pursue still further the course of giving the whole question of mitigation to a Department of State, where it does not properly reside.

We ought to be going in the other direction. We ought to be trying to make the burden less for Home Secretaries in the future, not greater. This is the first time I have spoken in this Chamber on this subject, although it will not in this Committee be the last, but a very long time ago—over a year ago—I put forward a good many proposals to the Government for the reform of the law on murder. Integrated into those proposals, running as a golden skein throughout them, was the principle that the Home Secretary and the Department over which he presides should have fewer burdens, if possible, and not more.

The two major burdens which they have to carry at present are, first that of sentence and, secondly, that of the issue of insanity. It is in relation to the first that we are dealing with this matter. If I am right—and it is fundamental whether I am, I agree—that the court shall determine the sentence first and shall say in the case of a particularly serious murder that a sentence of 20, 25 or even 30 years is the right sentence, then we shall achieve the result which my hon. Friend the Member for Conway (Mr. P. Thomas) alluded to earlier.

One can really assure the Committee, as has been done by my right hon. and gallant Friend, that there is hardly any greater deterrent to the professional
1860
criminal than a very long sentence of imprisonment. The case in which the judge might give the longest sentence of 30 or 40 years is, of course, clearly the case of a premeditated murder in circumstances in which there is little by way of mitigation.

Therefore, if we follow my Amendment, we shall get the best of both worlds. We shall get everything the right hon. Gentleman the Member for Lewisham, South wanted and we shall get everything that the courts want. We shall get it for this reason. First, we shall get sentence passed by the court. The court will say, "This is a particularly heinous murder," and the court will pass a sentence of 40 years. We shall also give power to the court to give a lesser sentence. That is equally important, and that is what the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels) wants. He is quite right, because in certain circumstances the court can immediately remove the anxiety in the public mind.

The court can give 12 months in a case where it has great sympathy with the circumstances of the murder. If what is to happen is to be under the Bill as it stands, we shall find that a person gets a sentence of imprisonment for life and the abolitionists will be creating a situation in which the public will be saying, "That young girl ought not to have got imprisonment for life. She ought to have got six months or 12 months."

If we want public opinion to be in the right frame of mind, we want the judge and the jury to do the job they are sent to court to do and to do it properly. I suggest, therefore, that if the noble Lord the Member for Dorset, South does not press his Amendment, there are others on this side of the Committee who feel very strongly on it.

I intervene at this stage to clarify the situation, because I think it is of the utmost importance to realise that what I am inviting the Committee to do is to consider giving the court full power to decide the sentence, be it long or short, without detracting from the prerogative right of the Home Secretary, if he so desires, on good grounds, to interfere in his discretion later. I quite agree that I do not expect that he would interfere so frequently, but hon. Members may well feel that that is right and that he would like the guidance of the courts and
1861
the evidence. It should be remembered that a shorthand note of that evidence is sent to the Home Secretary, so that he can consider it all when he comes to review the matter.

I should like to say something about the knowledge of the medical profession, to which the noble Lord the Member for Dorset, South referred. I believe that there is a general misapprehension here. I think that hon. Members feel that it is only after the case is over and it goes to the Home Secretary that the full medical position is discovered. That is absolutely wrong, and without a vestige of foundation. It has been my unhappy lot to defend in a case of murder, as it has been that of my hon. Friend the Member for Epsom (Mr. Rawlinson). All I can say—and my hon. Friend will no doubt speak later—is that in more than half the cases the defence is insanity, and in the balance of cases left over in almost every instance medical reports must be obtained and considered.

The prosecution are extremely generous and helpful and almost always disclose the reports made by whoever happens to be the prison medical officer. Therefore, when the case comes to be decided by the judge, he has not only the evidence of both prosecution and defence but he has also medical reports from the prison and the governor's report. At that stage, therefore, the judge is in every bit as good a position concerning the sentence as is the Home Secretary. It has been said by the Home Secretary and by his predecessor—and I am sure that it will be confirmed also by the right hon. Member for South Shields (Mr. Ede)—

I am endeavouring to loosen Home Secretaries from some of the prison bars which surround them in deciding a question which is a heavy responsibility that they alone have to bear.

It is true, of course, that in the case of a murderer—perhaps a man like Haigh or a murderer of that kind—the medical history may change. It may well be right then to review it, but there is not only a statutory right to reduce the sentence but also the right of the present
1862
review of all sentences, which takes place regularly. It is quite wrong to say that there is no power to review on the part of the Home Secretary—

Is the hon. Member really quite accurate? As I understand, there is, of course, a special statutory review under the Criminal Law (Amendment) Act in respect of long sentences on habitual criminals, and there is the statutory review of all sentences of life imprisonment, not only for murder.

Then, of course, there is the ordinary procedure of examination and inquiry, but I have yet to learn—though I am open to correction, and I am not trying to be controversial—that there is a habitual review of ordinary sentences. If the court imposes a sentence of 30 years or 15 years in lieu of life sentence, the Home Office will have no ordinary or statutory right of review and would be able to interfere only if some question of prerogative intervened later.

As I understand—I am speaking subject to correction—if a conviction for murder were sustained, there would be a right of review by the Home Secretary whatever sentence was passed. If I am wrong on that point, I can think of nothing easier than that the matter should be corrected on Report by the necessary Amendment.

I feel, for the reasons which I have elaborated, that it is right that the debate should continue. We are not being destructive on this matter, which is one of considerable constitutional gravity.

I intervene only for a few moments. It seemed to me that the Home Secretary put the point so fully, carefully and clearly that there was little more to be said, but I think that the point on which the hon. Member for the Isle of Thanet (Mr. Rees-Davies) and I are at issue is one that is vital to consideration of this matter. We have four Amendments under consideration. The noble Lord the Member for Dorset, South (Viscount Hinchingbrooke), as he always does, spoke with the greatest possible clarity, but he seems to have been misunderstood, though I think that I understood him clearly.

The Bill provides that in every case where there is a conviction for murder there will be passed a sentence of life
1863
imprisonment. A regular and habitual procedure of review applies to all cases of life imprisonment. It is a very special type of review, because it involves determining what is the meaning of the sentence at the appropriate time.

A sentence of life imprisonment has no meaning except life imprisonment, but it is only in very exceptional cases that it continues to be served as life imprisonment. The average period served in recent years has been about nine years. Therefore, there is a very special review of such a sentence.

The noble Lord the Member for Dorset, South says in effect, "I do not want to interfere with that, but let us not indulge in the humbug of sentencing people to life imprisonment when we do not mean it. Let us arrange for something which gives the power to detain them for life but provides for the possibility of review."

I sympathise very much with that, but I think that my right hon. Friend the Member for Lewisham, South (Mr. H. Morrison) was right on this point, and for a reason stronger than the one he gave. The words "detained during Her Majesty's pleasure" are used primarily in cases of lunacy and have acquired that connotation. They are also used in those cases where no conviction has been recorded because a finding of "guilty but insane" is not a conviction and is not a finding of guilt. There was a madman who attacked Queen Victoria and was found not guilty but insane. The dear old lady said that was monstrous because he had obviously done it. She did not mind him being found insane, but she objected to him being found not guilty. So to please the Queen we altered the formula to "guilty, but insane." It still means the same thing because a finding of insane is not a finding of guilt. I would prefer some other words, and I would not object to any form of words which would meet this case. The Bill, as drafted, does that, and the only point at issue between my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) and the noble Lord is whether we call it life imprisonment or use some less formal words.

On reflection, it seems to me that there are one or two grave objections to the proposal of the hon. Member for the Isle of Thanet. In passing, may I say that
1864
I have hesitated about these Amendments, I have had misgivings about them, and I do not speak with any sense of certitude. I speak as an old Liberal with a great deal of sympathy for anyone who says, "Do not let us have too much Ministerial interference. Let us leave it to the courts." But the real answer is that at the time the courts deal with the matter they have neither the means nor the knowledge nor the opportunity of knowing all the relevant facts relating to the sentence. It is true that if a charge of burglary is brought against a man, the police try to find out something about his record. They give the court which convicts him details of his previous convictions, and so on. Yet no one who has had such experience can say that this procedure is the most satisfactory, because, through no fault of the police, they have no method of investigating all the facts relevant to a case. They can produce a list of previous convictions but they can tell little else about the emotional or mental state or the background or other things material in assessing a sentence.

At this moment, in dealing with a capital case, none of that happens. The sentence is automatic. The sentence of death is imposed on a finding of guilty and there is no point in the judge considering any of those facts so he does not do so. They are not there, anyway. The answer is that they could be made available.

What are the facts that should be known? The right hon. and gallant Gentleman the Home Secretary said impressively and movingly and truly that the vital facts will not be known at that time anyhow. But there are other reasons, substantial reasons, why they must be known at that time. A defence of insanity is not always put up because a man is insane. Such a defence is frequently a last resort. If there is no hope of any other verdict, the prisoner seeks a verdict of guilty but insane. Therefore, a number of men who are insane do not plead insanity. Men suffering from a serious mental illness are the very people who say, "No, I will not have this said against me. I am not guilty. You must not plead that. You must get me off on the main issue". Therefore, in those circumstances the question of the mental health of the
1865
prisoner is not raised and cannot be heard by the judge.

There were one or two ominous words in the speech of the hon. Member for Epsom (Mr. Rawlinson), which were referred to by the hon. Gentleman the Member for the Isle of Thanet. The Amendment refers to a lesser sentence. Now a lesser sentence can be a much longer sentence because imprisonment for life leaves it open, if we talk about a lesser sentence, to imprisonment for 30 or 40 years. Indeed, the words "thirty years" were used by the hon. Member for the Isle of Thanet in talking about the sentence that could be imposed, although it has always been our general view and tradition that a life sentence means roughly twenty years or less, with diminutions for good conduct and so on.

So there is a real difficulty which I wish the Minister would clear up. I know that in theory the Home Office has power to intervene in every case. I know that in theory every case is subject to review. I know that in any special case where recommendations are made, new circumstances intervene, and so on, there are methods by which a further investigation can take place. However, as I understand the situation—and I believe this to be vital to the Amendment—if we normally impose a sentence of ten years' imprisonment, that normal sentence is served, with remissions, and there is no automatic review. So if we impose a sentence of 30 years for murder, it would mean, with good conduct, that the prisoner would serve 22½ years of that sentence with no intervention by the Home Secretary.

The hon. Member for the Isle of Thanet said that this was not what was meant. As I understood his concluding sentence, the hon. Gentleman said, "If that be so, we can put it right on the Report stage." If an Amendment were tabled on the Report stage making this clear, namely, that the sentence shall be in the discretion of the court and shall be subject to the same form of review as is now available on every life sentence, whether a life sentence is imposed or not, I frankly cannot see that there would be much in such an Amendment to reject. Speaking offhand, and without having seen it, I would be disposed to support such an Amendment because, feeling as I do at the moment, I see no objection to it.

1866
Those are the two issues before the Committee. The final Amendment in the name of my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) is, however well-meant, rather unintelligible. It reads:
or such other sentence as the court may in the circumstances deem proper.
Presumably that means a sentence of imprisonment, and in those circumstances is very much what we have been discussing either 40 years or five years as the court may decide.

Yes, I agree. No doubt it is commendable, but it seems to me that, on this issue, if the hon. and learned Gentlemen who have devoted much time in thinking about these matters and who have produced these Amendments, would bring forward on Report stage an Amendment to meet the points I have made, that would be the better way to deal with it.

The noble Lord made a fair case with which I have the greatest sympathy, and I shall feel disposed not to vote against his Amendment if he asks for a decision on it. It would be better, however, if a new form of words could be devised for more than the one reason he suggested. Subject to that, and speaking as I do only for myself, I find the really threatening part of this Amendment the possibility, indeed the almost complete certainty on such expert advice as I have, that it would deprive the Home Secretary of the opportunity of review which he now possesses.

It is not often that I find myself broadly in agreement with the hon. Member for Oldham, West (Mr. Hale), but I am inclined to agree with the speech he has just made. I feel that the Amendment of the noble Lord is a genuine effort to improve this Bill. At the same time I am not much impressed by the view that if we delete "imprisonment for life" and substitute "detained during Her Majesty's pleasure", there would be two disadvantages. One was that mentioned by the hon. Gentleman, that it is a term which is normally applied too loosely. Beyond that, there is much to be said for the death penalty, since it is a sentence which
1867
appears to be an alarming one to the prisoner in the court, but is one which, under the present law, can be reduced by the Home Office to practically nothing within a few days if necessary. Psychologically, there is a great deal to be said, if we do not have the death penalty, for the life imprisonment to appear to be the sentence. Then in circumstances in which that was totally unsuitable, the sentence could be reviewed by a body experienced in these matters.

8.0 p.m.

Frankly, I do not like the Amendment of my hon. Friend the Member for the Isle of Thanet, which seems to be based on how the courts work in Denmark. I understand that in Denmark the judge has power to give a sentence of imprisonment for murder either of any length up to 16 years or else for life. Life imprisonment is to all intents and purposes imprisonment for life, and under that system in Denmark men are serving 30 and 40 years imprisonment, without, so far as I know, any opportunity of review.

The hon. Member for Oldham, West suggested that an alteration could be made on Report and the question of review considered, but we must look at the Bill as it stands, and if we accepted the Amendment and wrote the Amendment into the Bill, then we must remember that to all intents and purposes the decision reached by the court, under the circumstances known to the court at the time, might be completely wrong but that no review could be carried out later. There are many cases today in which murderers are reprieved and in which, at a later stage, the Home Secretary is able to see how those men, particularly if they are young men, have shaped during their imprisonment. I know of a case where a young man who was given life imprisonment several years ago—a particularly bad case—is to come out of prison fairly soon because, apparently, he has improved very much under the reform methods now used in prison.

It would be most unfortunate if a long term of imprisonment were laid down without the opportunity of review—a review which the Home Office must be able to carry out much more effectively at a later stage than the courts could carry it out at the time. At the time the court
1868
can deal only with the circumstances as they stand.

On those grounds, I hope that neither of the Amendments will be pressed to a Division. I appreciate what lies behind them. I hope that neither will be pressed to a Division because, much as I detest the Bill as a whole. I agree with the Home Office that it is better as it stands than it would be if either Amendment were inserted in its present form.

One strong objection to the Amendment of the hon. Member for the Isle of Thanet (Mr. Rees-Davies) which has not yet been put forward is that the court, in its wisdom, may give a short sentence of perhaps 12 years, and when that sentence, with suitable remission, is drawing to its close the Home Office may be aware that there has been some deterioration in the prisoner's condition which makes it advisable in the public safety that he should stay in prison still longer. Under the Amendment there would be no provision for retaining him in prison. That seems to me a very strong case for preserving the discretion of the Home Office in this matter.

I am in sympathy with the Amendment of the noble Lord the Member for Dorset, South (Viscount Hinchingbrooke), although I am bound to say that there seems to be some substance in the criticism that the phrase "detained during Her Majesty's pleasure" is already used for other purposes, and, in particular, for the purpose of detaining people who are mentally abnormal. I should have preferred to see on the Notice Paper an Amendment on the lines of that of the hon. Member for the Isle of Thanet but saying that an offender should be "detained during the life-time of the offender or such lesser sentence as the Home Secretary may determine." In the absence of such an Amendment, I will support the Amendment moved by the noble Lord.

The Amendment in my name and those of my hon. Friends was put down because it seemed to me that if the death penalty for murder were removed it was necessary to have a strong alternative deterrent. The Amendment in the name of my noble Friend the Member for Dorset, South (Viscount Hinchingbrooke) does not provide that strong deterrent
1869
because it leaves the length of the sentence very flexible; it might be very short or, less likely, it might be very long.

The Amendment of my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) is infinitely preferable to my noble Friend's Amendment since, in exercising any function of review which he might have from time to time, the Home Secretary would be guided by the sentence which the court had originally imposed, which sentence would presumably reflect the gravity of the murder.

I cannot ask for a vote to be taken upon my Amendment, but I tabled it because I wanted to place on record the inherent weakness of the Bill and why I am opposed to it. Apparently there is in the constitution virtually no strong guarantee of a long prison sentence for anybody who commits murder—and murder is killing somebody else with malice aforethought. When I put the Amendment down I hoped it would be possible to take a vote on it, but I now know that that is not possible and that the choice is between the two Amendments. I prefer that of my hon. Friend the Member for the Isle of Thanet.

I want to tell the Committee why I put my name down to an Amendment to this Clause. As it stands, the Clause makes it impossible for the court to do anything else but impose a sentence of imprisonment for life; it does not matter what the circumstances are when the case is heard—and I am not talking about subsequent evidence. If the words remain in the Bill as at present, they are imperative, and, whatever the evidence as to character or the view of the court, the court would be bound to impose a sentence of imprisonment for life.

It has been said that it is not possible for the court to look into the future and know what subsequent events are going to be, and the Home Secretary himself properly said that, while the person is undergoing the sentence, he can be watched, his conduct and his reaction to imprisonment can be recorded and tested, and, if the circumstances justify him in doing so, the Home Secretary can deal with him accordingly. But there is another most important consideration that arises here, and it is what the position was at the time of the sentence. I quite agree that we cannot at the time of
1870
sentence judge how the future will shape itself, but I am very much concerned with the circumstances that apply at the particular moment when the sentence is passed.

Let us suppose—and we can imagine it, because it is arising every day—the situation in which the circumstances are such that the sentence ought not to be for life but should be for a shorter period. As an hon. Gentleman opposite has said, it may be a case in which it is more proper to put the accused on probation. It may be more proper to indicate that the accused should undergo some medical attention for a certain period. It may very well be that, after the expiration of that period, it would be right mercifully to discharge him. These are special cases, but they do arise.

This is what struck me most of all. Let us suppose that there is a case of some poor, unfortunate person who is in the dock and is found guilty, and that the court finds itself bound to inflict upon that hapless person a prison sentence for life. Let us suppose that it is right in these cruel circumstances that the sentence should be twelve months' imprisonment. Imagine the distress that we are going to inflict upon that poor person when he hears that his sentence is to be for life instead of for a shorter period. Imagine the distress that will be imposed on the family of that particular person. It seems to me that nothing can be lost, at least, by having the words that I have proposed added after the words about life imprisonment, which is now fixed rigidly upon the court, so that there should follow these qualifying and modifying words—
or such other sentence as the court may in the circumstances deem proper.
Then, the facts which at that time are known, and upon which the court can safely act, can be put into operation, and the court can give a sentence which is less than the life sentence, and which will be a sentence for a term which is consistent with the facts and would also have the effect of saving the poor hapless person to whom I have alluded and his family from the distress which would otherwise be inflicted upon them.

The hon. Member for Nelson and Colne (Mr. S. Silverman) is, in a sense, recoiling on his own logic. The logic of the arguments which have
1871
been put forward by the hon. Gentleman was that one of the defects of hanging was that it was indiscriminate and applied equally both to the good and the bad. Now, if that be so, then the punishment, even if it is imprisonment, should equally be adjusted. It looks like a powerful argument, but I suggest to the Committee that the hon. Gentleman was right to stand by life imprisonment.

I thought the Committee had agreed firstly that murder is itself a distinctive and horrible crime; secondly, that there is great difficulty in sub-dividing it and making degrees of it; and, thirdly, that the deterrent effect of hanging was at any rate no greater than that of a substantial term of imprisonment. If we have got as far as that, then it seems to me that there must be in this Bill nothing which destroys the prerogative of mercy which exists on hanging but that there should be a declaration that the punishment is life imprisonment. It ought to start with that, just as in the existing law it starts with capital punishment. That did not, in fact, destroy there being any exercise of the prerogative of mercy, and the point about the importance of defining it is that, if we are to attach importance to the deterrent element—and a lot of my hon. Friends are almost seen now to be throwing off the deterrent element—we must start with certainty so that the person convicted must be able to say, "Well, I start with penal servitude, wherever I get to," instead of saying, "I start with 'such sentence as the court thinks fit'".

8.15 p.m.

The public will then say that this is an extraordinary business. They will say that not only has Parliament abolished capital punishment but has left the substitute punishment in the air. I think it is much better that, if we are to have a deterrent element, we should keep to the old principle, namely, that it is a fixed outstanding penalty, and not as in most other offences where the penalty is no more than life imprisonment or penal servitude, but this should be exceptional in the sense that it says it is penal servitude and no less, while leaving the prerogative of mercy open to be exercised if justified.

I think it would be a mistake suddenly to give for murder some quite different
1872
kind of penalty. Murder is such a grave and exceptional crime that it should be treated exceptionally. I think we have taken a lot of the power away from existing sanctions, and we should leave the Bill as it is, but we shall lose a lot of the confidence of the public if we cut out any real definite sanction.

These Amendments raise a very important issue. Supposing that we take the argument that the death penalty should be abolished, we should then have to consider the alternative sentence of life imprisonment and the position of the court in that respect. It may well be that, following the suggestion of the hon. and learned Member for Bolton, East (Mr. Philip Bell), my hon. Friends on this side of the Committee will reconsider their position before the Report stage, because this is a very important issue.

If the sentence is to be life imprisonment, it will be the duty of the court, according to the Amendment in the name of the noble Lord, simply to say to the accused that he or she is to be detained during Her Majesty's pleasure. The hon. and learned Gentleman is quite right in saying that, up to now, that form of wording and that kind of sentence has been used almost exclusively in respect of persons who have been found insane. I think there was a great deal of force in the argument and the hon. and learned Gentleman's conclusion that, if that was the form of the sentence, and we were dealing with a mercy killing in which a person had committed a murder in circumstances in which the proper sentence would be a small one or even a conditional discharge, that person would be kept in suspense, and surely it is that sort of case where the court should have a discretion in that respect. If it is admitted for the sake of argument that the death penalty should be abolished altogether, then I say that I should prefer the viewpoint of my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies).

I am sure the Committee will be grateful to the Home Secretary for so carefully explaining the position of the Home Secretary in these matters and in regard to retaining that discretion in such cases as he described. I am sure that that discretion is always exercised most mercifully, but there is nothing about the
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suggestion that the courts should impose a less sentence than life imprisonment. It may well be that, as the hon. and learned Member for Bolton, East suggested, the matter should be further reviewed, because the Bill should not go forward without some further consideration of this particularly difficult point.

There has been very general agreement that a fundamental and constitutional point has been raised which should be further considered and that the Report stage might be the right time to put this matter right. At present under the existing law there is only one penalty for the crime of murder, and it is unique in that respect. It is true that it is given some flexibility by the use of the prerogative of mercy. Nevertheless, that itself means that to a great extent the control over sentence is removed from the court and given to an Executive officer applying a code unknown to the law of the land—although I do not doubt that it is administratively consistent and on evidence privately tendered. On the face of it, that is a most objectionable state for us to be in.

But there is also the question of the inflexibility of the present law. As my hon. Friend the Member for Epsom (Mr. Rawlinson) pointed out, the very first recommendation of the Royal Commission drew attention to that very point. The Commission said that the outstanding effect of the law of murder is that it provides a single punishment for a crime widely varying in culpability. In paragraph 22 the Commission said:
This rigidity is the outstanding defect of our law of murder.
The Bill as drafted perpetuates that precise rigidity. We still have only one penalty, the maximum penalty which the law knows apart from the capital sentence, life imprisonment, and the only mitigation which we have permitted is the exercise of the Royal Prerogative of mercy. In other words, we are precisely back in the position, so far as rigidity and constitutional practice are concerned, as under the present law.

That is not quite right, is it? It is perfectly true that the same formal sentence is passed; it is perfectly true that both are subject to review by the Home Secretary, who has various powers; but the essential difference which makes one rigid and the other
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not rigid is that whereas when a sentence of death is passed the Home Secretary can review it only once, when a sentence of imprisonment for life is passed it is under constant review the whole time.

I entirely agree with that, but it does not meet the point that the law is rigid in imposing only one sentence. I entirely agreed with the hon. and learned Member for Gloucester (Mr. Turner-Samuels) when he used the argument, which from the abolitionists I have always found most impressive, of the heartlessness of a sentence of death on people when everybody knows there is no intention of execution. Exactly the same consideration applies under the provisions of the Bill.

A sentence of life imprisonment will be passed on a person like the wretched woman who killed her imbecile son when going into hospital and everyone knew that the Home Secretary would release her immediately. Why should she not be released by the court? Why in cases like that should not the court discharge her absolutely? Why should either a sentence of death or of life imprisonment be passed on her? I suggest that there is here a very great problem which we must face.

My hon. Friend the Member for Dorset, South (Viscount Hinchingbrooke) proposes to deal with it by transferring the whole of the sentencing policy to the Executive. That has disadvantages of its own. In the first place, the Executive is not normally the constitutional body to whom we should normally vouchsafe the sentencing of prisoners. In the second place, it is bound to act on evidence privately tendered, and in the third place nobody knows what code is applied.

It is a fundamental principle of our system of justice and a very great safeguard of civil liberties that normally sentencing, as with other judicial processes, is carried out in the public view. I suggest that the noble Lord's Amendment has that very grave constitutional disadvantage. It also has unnecessary rigidity, because there are some sentences which can be imposed by the court, but which are not open to the Executive. The hon. and learned Member for Gloucester mentioned one. It might, even in cases of murder, be desirable to place the offender on probation. One
1875
knows that there are cases of young offenders for whom the appropriate sentence might very well be a sentence of probation, guidance in the community, rather than shutting him away.

Again, it might be desirable to impose a sentence of probation with annexed a condition that he submits himself to medical treatment, either in an institution or outside. That is not open to the Executive. The noble Lord's Amendment has some quite unnecessary disadvantages on the ground of humanity as well as being constitutionally objectionable.

I am attracted by the Amendment of my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies), but I see the force of the argument that it might to some extent be infringing upon the prerogative of mercy, and that is an additional flexibility which we want to preserve. The hon. Member for Northfield (Mr. Chapman) in an interjection drew attention to the very important point that in many of these cases medical treatment may be suitable and may even be successful.

I think that on the whole we hope too much from that. The right hon. Member for Grimsby (Mr. Younger) in the Second Reading debate referred to the new Hubert East Institution which is building, or shortly to be built, as a suitable place for dealing with aggressive psychopaths who commit murder. From the Report of the Prison Commissioners it does not seem that the Commissioners envisage the use of that institution for that sort of criminal. Further, as the Royal Commission pointed out, the possibility of successful treatment is likely to obtain only in a very small minority of cases: in the overwhelming majority of cases the psychological defect is irremediable. Nevertheless, it is not something which we should rule out. I am therefore attracted by the suggestion of the hon. Member for Oldham, West (Mr. Hale) that we should reconsider this matter and provide for a control by the Home Secretary if there is a great improvement which was not looked for by the courts.

Again it may be that the court might find itself in such doubt as to the prospect of successful treatment that it would be desirable to give to the court, as a possible alternative sentence, the sentence of detention during Her
1876
Majesty's pleasure. That is another possibility which I think we should explore.

One hon. Member opposite suggested that it was desirable to leave the matter in the hands of the Home Secretary entirely because the sentence of the court might not be sufficient. That I think is a very dangerous argument. It is equally valid in cases other than murder, and the proper remedy, if there is a real case for protecting the community, is certification. Short of that, one ought not to interfere with civil liberties in order to increase the sentence of the court.

My hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) suggested that it is necessary to keep inflexibility as a deterrent. I think that that is not really a valid argument. It is the maximum penalty which is the deterrent, the fact that the criminal knows that he may be sentenced for life; and it is quite undesirable, in my submission to the Committee, to say that because we must have a deterrent—which is so in all crimes—we must therefore have one fixed inflexible sentence to be passed by the court, and then leave mitigation to the Executive.

For those reasons, I hope that my hon. Friends will withdraw their Amendment so that we can reconsider this matter and, if necessary, put down further Amendments at a later stage.

I think that the Committee would not desire to delay longer at this stage. My hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) invests my Amendment with the most awesome constitutional consequences, whereas I gather from the remarks of other hon. Members that in their view it does nothing more than take some meaningless words out of the judge's mouth. I do agree that the whole issue as between future executive action in regard to murderers no longer condemned to death and the courts' decision as to their future sentence must be thrashed out at another stage of the proceedings on this Bill.

At the stage at which we have now arrived, it seems to me a great pity that the Royal Commission was not given a term of reference to the effect that capital punishment was to be abolished, asking it to proceed to discuss for five years
1877
the consequences which arise. Some of the consequences are immediately apparent in this Committee tonight. There really are some very powerful arguments, some of which have been made already, in favour of the courts exercising a function which has been denied them hitherto.

I do not believe that we want to continue discussing this matter now. I am rather impressed by the arguments of my hon. Friends, and I think there is something to be said for the deterrent words going in. Whether those words should provide for imprisonment for life—a sentence which we know will not according to that phrase be carried out in a multitude of cases—or whether there should be some other phrase, hon. Members could perhaps discuss before we get to the next stage on the Bill.

In view of all that has been said, I beg to ask leave to withdraw the Amendment.

Would it be in order, Mr. Thomas, for me to make one or two observations about an Amendment which stood in my name, which was discussed with the Amendment standing in the name of the noble Lord, in the light of what has been said?

The hon. and learned Gentleman may call for a separate Division on his Amendment which we have been discussing, if he so desires; but I think it would be helpful if he did not seek further to debate the issue.

I was not proposing to do that, Mr. Thomas. In indicating that I do not desire to move my Amendment to a Division, I would merely wish to add that, for the reasons which have been given in the Chamber recently, particularly those given a moment ago, it does seem that the right and proper course is for the whole matter to be reconsidered on the Report stage, as has been suggested.

I beg to move, in page 1, line 9, at the end to insert:
Provided that this subsection shall not apply to any offence for which the penalty of death is prescribed by the Army Act, 1955, the Air Force Act, 1955, or the Naval Discipline Act.
I suggest to the Committee that this is probably the most important Amendment to the Bill which we shall consider.
1878
It is fairly simple to understand. The word "offence" means "murder," so that it reads:
Provided that this subsection shall not apply to any murder for which the penalty of death is prescribed
by the Army Act, the Air Force Act or the Naval Discipline Act.

May I start by saying that on 9th November, 1955, this issue was discussed during the Committee stage of the Army Bill and a vote was taken in which 10 hon. Members voted for the abolition of the death penalty for murder and other offences, and 205 hon. Members voted for its retention. Those hon. Members who voted for its abolition included the promoter of this Bill and the hon. Member for Oldham, West (Mr. Hale). Although those hon. Gentlemen and the other few who supported them said, in terms, that they were in favour of the abolition of the death penalty in all circumstances—they said that they favoured the abolition of the death penalty for treason, treachery, mutiny, aiding and assisting the enemy and for murder—I have little doubt that I shall take the Committee with me when I say that that view, which was not subscribed to then, will not be subscribed to now by the overwhelming majority of the Committee.

I do not propose to discuss the others save by way of analogy. I propose to use, by way of analogy and illustration, the ridiculous situation which arises where the penalty for murder will, apparently, be life imprisonment in certain circumstances—or may be—whereas the penalty for mutiny would still be death. I should, therefore, only be referring to the other offences as analogous to the astonishing state which would arise if in fact the Bill went through in a certain form.

What I must first deal with is a question of over-riding importance, for I believe that this Amendment is only a clarifying Amendment. I am advised—and here I must address myself to the promoter of
1879
the Bill—that, as the Bill stands at present, the Armed Forces are not included in its ambit.

I think I should say that I am advised to the exact contrary. Perhaps I may now deal with the point. Clause 1 states:
During the continuance in force of this Act, no person shall be sentenced by a court to death for murder"—
and I am advised that the word "court" includes a court-martial. The Clause goes on:
and every enactment"—
and I am advised that the word "enactment" will include the Army Act, the Naval Discipline Act and the Air Force Act—
… in any case of murder"—
and the hon. Gentleman has conceded that his Amendment applies only to murder—
shall be construed as requiring the court to sentence the offender to imprisonment for life.
In fact, I am advised that in each of those Acts, wherever the Act describes a sentence of death for murder, the Clause will have the effect of requiring the court to pass a sentence of imprisonment for life.

I hope that the hon. Member for the Isle of Thanet (Mr. Rees-Davies) will forgive me for intervening again. As I am advised, the normal practice is that if a serving soldier, airman or sailor commits murder in this country he is tried by the civil courts, and no question therefore arises. It is only where the murder is committed abroad that any question can arise. In so far as any enactment requires any court to impose sentence of death for murder, that enactment is amended by Clause 1 (1) of the Bill. If it true that in one of the Acts the question arises everywhere
1880
abroad except in Gibraltar and Malta, that is an a fortiori argument.

What has been said by the hon. Member brings out with absolute clarity the vital importance of the Amendment because, whatever else may be the position, it is essential that the situation should be clarified. I am quite emphatic that the advice I have received is that the word "court" in the Clause is very ambiguous, and that it is by no means certain that it includes a court martial. Many take the view that it does not do so—including eminent Parliamentary counsel.

My second point I shall refer to in rather more detail. Section 70 of the Army Act, 1955, says:
Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section.
That is to say, in the case of the Army Act—and I can deal with the others in a similar fashion—a person who commits murder is committing an offence against Section 70. The Section continues:
In this Act the expression civil offence means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law ….
I draw attention to the fact that that in no way refers to the penalty, but only to the commission of the offence. Subsection (3) reads:
A person convicted by court-martial of an offence against this Section shall (a) if the corresponding civil offence is treason or murder, be liable to suffer death; (b) in any other case.
be liable to the penalty which can be suffered under the English law.

Section 70 makes it plain that it is not the same sentence as that which prevails in an English court at present. The present position in an English court is that a murderer shall suffer the death penalty, and sentence of death is passed whether or not the Prerogative is afterwards exercised. Under Section 70 a totally different penalty is applied, namely, that when the civil offence is treason or murder there is only liability to suffer death. It is not absolute, but discretionary. It is clear that we must have an Amendment to clarify the position, which is now a matter of great concern to those particularly interested in the Bill.

Throughout the debates on this matter not a word has been said about the position of the Armed Forces. We are driven to the conclusion that the House emphatically decided only last February by an overwhelming majority in favour of retaining the death penalty for murder and other disciplinary offences. Not only did two former Home Secretaries vote against the Motion put forward by the hon. Member for South Ayrshire (Mr. Emrys Hughes), but they supported their view in the Lobby. Select Committees which considered the Army Act, the Air Force Act and the Naval Discipline Act returned agreed proposals which included the retention of the death penalty for murder and other offences. Having agreed to those proposals, those right hon. Gentlemen supported them in the Division Lobby.

Whatever view may be taken by abolitionists, and whether it is right or wrong to retain the death penalty for civilians in the United Kingdom, it is clear that hon. Members generally do not desire that the Armed Forces shall be included, or they have been hoodwinked, if the view of the hon. Member for Nelson and Colne (Mr. S. Silverman) is right. Had it not been for my Amendment being tabled we should have found, if the hon. Gentleman is right in his submission, the whole of the Armed Forces included automatically within the ambit of the abolition of the death penalty.

The views of hon. Members on this matter are rather like murders, because they grade from one camp to the other with many different views between. One view is taken by the pacifist element, plus one or two supporters, who want to see the discipline of the Armed Forces interfered with. The overwhelming view seems to be that the Bill was not designed or intended to cover anybody but civilians in the United Kingdom.

A proposition of law which, I believe, will not be disputed is that the Bill applies only to the United Kingdom and does not deal with terrorist activities overseas. It applies to Scotland, Wales and Northern Ireland, but there are two Amendments on the Notice Paper to remove the application from those court tries, so we may find in due course that
1882
the Bill will apply only to England and Wales. There is not a word anywhere, or any Amendment, to clarify the position by saying that the Bill does not apply to the Armed Forces, although I believe that the majority of my hon. Friends endorse the view that the Armed Forces should be excluded from the operation of the Bill.

Whatever else arises, it is necessary that the Amendment should be carried as a clarifying Amendment. Whatever happens later—and it may be open to the hon. Member to put down other Amendments on Report—it is only reasonable that if he elects to allow the Bill to come to the House in its present shoddy state, with no endeavour to clear up the ambiguities of the situation, he should be hoist with his own petard and should not be allowed to get in through the back door a suggestion to include the Armed Forces in the Bill.

I throw out this challenge to him: if he can find any regiment in the Army, any wing in the Air Force or any ship in the Navy which wants an alteration of the present code of discipline, I should be glad to hear any evidence to support him. I say emphatically that the Armed Forces as a whole are all in favour of the present powers, which were very carefully reviewed recently in both the Army and the Air Force. Having been reviewed by both, they were reviewed by the House and agreed proposals were put forward, following a Select Committee, following ample opportunity of debate and following a Division in which the few abolitionists were defeated by over 20 votes to one.

That is the background to the position. Let us see what is the position on the assumption that this is not only a clarifying Amendment—although I still believe that it is only a clarifying Amendment and that the Army, the Air Force and the Navy are not included within the ambit of the Bill, and that it would require an Amendment by the hon. Member if he wanted to include them in it.

Let us suppose that the hon. Member is right, and take the Army as the most convenient example. I think that most of us have had more experience of the Army than of the other two Services, although no doubt my hon. and gallant Friend the Member for Macclesfield (Air
1883
Commodore Harvey) will later put forward the views of someone who has close knowledge of the Air Force.

Let us see what the situation is if this is also a substantive Amendment. If a Service man commits a murder in the United Kingdom he is handed over to a civil court and tried by that civil court for murder. In that case, assuming that the court-martial applied for this Bill, he would not be liable to the death penalty—assuming that the Bill is passed. In other words, if a civilian committed a murder he would not be liable to the death penalty, and similarly if a Service man committed a civilian murder he would not be liable to the death penalty. That is manifestly right.

If, on the other hand, a murder is perpetrated overseas, we have to remember that the Bill does not apply overseas at all. It is clearly right that overseas the Army Act should apply in the ordinary way and that the offence should not come within the ambit of the Bill. For instance, in the case of terrorist activities in the Federated Malay States, or Mau Mau activities in Kenya, or terrorist activities in Cyprus or elsewhere, the present situation would be maintained and the death penalty would be retained.

Let us take the third and obviously serious question of active service in time of war. This is where I draw from the analogy one with the other. Why is it that Members of the House of Commons shade very much in their opinion from one extreme view to the other? The real reason has never been fully canvassed in the Press even yet. A number of us rather wanted to raise this issue during Second Reading—that is well known—but most of us failed to get into that debate. It was fought to and fro in the Chamber on the question of deterrents, on the view as to whether the Home Secretary should or should not reprieve, and on many other issues. This Amendment, however, raises the real basic issue of the death penalty.

This is the issue. In what circumstances can it be right for the State to take life? That is to say, what is the ultimate sanction? The ultimate sanction is human life. Most of us agree that it is right that the State should have that ultimate sanction in certain cases. We
1884
believe it is right to have that ultimate sanction in the case of treason.

We have said more than once that it is right that there should be the State's duty to take life in time of war, where a man is a spy, is aiding the enemy, is engaging in mutiny or fails to suppress mutiny, or is guilty of treachery. All these offences are set out in Sections 24 to 32 of the Army Act.

If that be the right ultimate human sanction in those cases, what the Committee has to consider tonight is where to draw the line. When looking to see where to draw the line, one must see whether it should include or exclude murder. Let me give an example. Suppose that somebody is about to desert in the face of the enemy and he shoots another soldier, N.C.O. or officer, in time of war or of emergency on active service. Is it really suggested that the death penalty should be retained for murder in those circumstances?

On a point of order, Mr. Thomas. Is the hon. Member in order in going as wide as he is now going? As I understand, the Bill deals with the death penalty. The offences under the Army Act go very wide of that. If the hon. Member is permitted to go as wide as he has now gone, I submit that others of us who would wish to pursue the same line should be similarly allowed.

I was watching very carefully what the hon. Member was saying. He has just touched on it. I asked earlier, in case this trouble arose, that hon. Members should avoid trying to discuss whether the death penalty should be given for the list of other offences. We are considering solely whether the death penalty is to be applied for murder.

It is, of course, fundamental that in murder there is a question of degree, just as my opinion and somebody else's opinion is a question of degree. One thing which is quite clear is that the House has overwhelmingly and technically asserted that it is in favour of the death penalty for certain crimes under these various Acts. I am drawing attention to the fact, therefore, that there is no dispute between us in the Chamber,
1885
with the exception of 10 Members, with regard to the necessity for the death penalty in certain cases. I am posing the question: where does one draw the line in the ultimate sanction of human life?

The real issue in the death penalty has never been discussed until tonight—that is why this Committee stage is so useful—because we do not come down to the realities of the situation. The reality of the situation is the ultimate human sanction of the State: when is it to take life? What we who support the Amendment say is that in the case of the Armed Forces, certainly in the realm where they are on active service, it must be right that one of the disciplinary forces which they must have at their command is the right unfortunately to take life in the circumstances which may arise. It is vital.

I therefore believe that not only has this had the support of the House before, as I shall show presently, but that it is plainly right that whatever else we may do with the Bill in relation to other Amendments, this scope of the Armed Forces must be quite clearly ruled out of the Bill—either ruled out because it is not in it and then the Amendment is in order because it is a clarifying Amendment, or, if it is not on the basis of a clarifying Amendment, because it is a substantive Amendment which should be carried.

9.0 p.m.

In Committee on the Army Bill the hon. Gentleman the Member for South Ayrshire moved an Amendment designed to secure the removal of the death penalty from military law entirely, and he was supported by the hon. Gentleman the Member for Oldham, East. The hon. Gentleman the Member for Oldham, East argued that the death penalty was entirely wrong for all these offences.

I entirely agree that it is a heinous offence to be associated
1886
with the hon. Member for Oldham, West in matters of this kind; and I do apologise.

That theme having been developed, one heard a number of hon. Members opposite say categorically that as a matter of discipline it was essential that this deterrent should be retained in the Armed Forces. In that debate, of course, they were particularly concerned with the Army because it was the Army which was being discussed. However, shortly afterwards the Air Force Bill also went through in substantially the same form.

The Committee has to realise that the Naval Discipline Act is now the subject of review by a Select Committee of the House, which, no doubt, is bringing it into conformity in certain appropriate respects with the other two Acts. Therefore, this would seem a most invidious moment for the Committee to seek, on a Private Member's Bill, in this way to cut across the work of a Select Committee representative of both sides of the House, a Select Committee which has to consider this very important matter as it affects the Navy.

Of course it does not. That was a somewhat stupid observation, if I may say so. The only purpose of my Amendment, as I had hoped I had explained clearly, is to maintain the present position. The purpose of the Amendment is to clarify the position and see that the death penalty is not abolished in the Navy and not abolished in the Army and not abolished in the Air Force, and that the present law is maintained.

I thought the hon. Gentleman's point was that the question whether it should be retained or not retained is now being considered by a Select Committee. I am sorry to continue to be stupid, but that question is now being considered by a Select Committee, and if it is not proper for this Committee to do anything about it while it is being considered by the Select Committee, why is the hon. Member moving his Amendment?

I repeat that the purpose of the Amendment is to clear the position so that the existing law is maintained, and the Select Committee can get on with its work to bring that Measure into line with the findings of the previous Select Committee.

As I have said before, I merely want to underline the point. I do not believe that those who are not in the Chamber at the moment have the slightest idea from reading the Bill that it covers the Army, Air Force and Navy. There is no word in the Bill which refers to a court-martial, and there is no definition of the word "court". Under the Army Act, this is a separate matter altogether. A civil court can deal with the offence only under Section 70 (4), which gives the civil court express power where the murder is committed in the United Kingdom to try the accused That power applies only to murder and to treason.

Where the Army Act lays down a different penalty for murder than would exist in this country under the Bill we should have an anomaly. Furthermore, what is to be done with the terrorism that goes on overseas in Cyprus, in the Middle East, in Kenya and in Malaya? We might well have a different law applying to ordinary civilians from that which would apply to the Armed Forces, and that would be entirely wrong. I am not suggesting that it would be in order to discuss the terrorist activities, and I do not propose to do so. This Bill applies to the United Kingdom only and we should remember that the Armed Forces are stationed in the outposts of the world and that they are outside the ambit of the Bill, the purpose of which is to deal with civilian murders in this country and not with murders outside this country at all.

Therefore, because of the reasons which I have given and because there are cases which can occur on active service or in time of war where we need the ultimate sanction of taking human life, I commend the Committee this Amendment. It goes not only to the roots of discipline in the Armed Forces, but to the roots of the real question of the death penalty. The real question is that of the ultimate human sanction when the State has the right to take life.

On a point of order. I wish to raise a point to which my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) referred when he spoke of the relation of the Bill to the Naval Discipline Act. Section 45 of that Act provides that
Every person subject to this Act who shall be guilty of Murder shall suffer Death.
The hon. Member for Nelson and Colne (Mr. S. Silverman) has said that the interpretation of the Bill, as he sees it, will have the effect of changing the law relating to the offence of murder committed in the Armed Forces. In the case of the Army and the Air Force it may be that no great difficulty will arise, because, in practice, the charge of murder is nearly always tried by a civil court.

In the case of the Navy it is much more frequent, in certain conditions, for the offence to be tried by court-martial. I ask, therefore, whether it is competent for the Committee now to seek to pass legislation which is in conflict with the free attention to its duties which the whole House of Commons has laid upon the Select Committee which was set up on 17th February to
consider the Naval Discipline Act, and to make recommendations for the amendment thereof …
If, as a result of the proceedings in this Committee, the Select Committee set up by the whole House found itself fettered in some way, I would ask for your guidance and ruling for the benefit of this Committee, Sir Charles.

Further to that point of order. Sir Charles. I am hoping later to have an opportunity of helping the Committee by expressing a view on the legal problem which has been discussed between the promoter of this Bill and my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies). I do not know whether it will be convenient to say anything upon that now. It is a subject to which I have given some thought but, of course, it does not bear directly on the point of order raised by my hon. Friend. However, it may be helpful to you, Sir Charles, to know that I am proposing to say something on that question later.

The Amendment does not seek to alter the Naval Discipline
1889
Act, but simply to include these words in the Bill. Therefore, anything we do does not affect the scope of inquiry of the Select Committee, whether this Amendment is carried or not.

On a point of order, Sir Charles. With great respect, several of us are interested in this matter. So far we have heard only one speech, and now the promoter of the Bill gets up to give his reply. Surely it is unusual not to give the Committee more opportunity to discuss this matter.

I certainly did not regard myself as winding up the discussion. [HON. MEMBERS: "Speak up."] I repeat that the hon. Gentleman the Member for the Isle of Thanet made a mystical and complicated speech on what is an extremely simple point. May I, first, deplore his unjustified attack on the Home Office—[HON. MEMBERS: "On whom?"] On the Home Office. The hon. Gentleman described the Bill as being shoddy. He meant, I suppose, that its drafting was shoddy and that if I had taken the responsibility of putting it forward in so shoddily drafted a way, and this involved me in some difficulty, that was my fault.

I do not think that the Bill is shoddy. I think it is competently drawn, most effectively, most lucidly, and that it deals with all the points that could possibly arise with a clarity that I certainly could not have devised for myself. The hon. Gentleman was not in the House at the time when we sought to add the Clause and which, at one time, we succeeded in adding. The Criminal Justice Bill of 1948 was drafted in the Home Office, with all those points in mind, including the point with which the hon. Gentleman was dealing. All I have done is to reprint as a Bill, with minor Amendments at the end, the Clause that was so kindly and generously drafted for me by the Home Office in 1948 when my right hon. Friend
1890
the Member for South Shields (Mr. Ede) was Home Secretary.

If, therefore, the words in it are shoddy, I am not responsible for it except to such degree as I accept responsibility now—

—but I cannot find anything of the kind in it. I am certain that the draftsman had these important points in mind and that the Clause was drafted to cover them.

Secondly, I want to answer the point made by the hon. Gentleman about the occasion when ten of us voted against the death penalty in the debate on the Army (Annual) Act. He seemed to deduce from the fact that we were such a small minority, that the great majority of the House at that time—all those who did not go into the Lobby with us against any kind of death penalty for any offence in the Armed Services—were thereby saying that they wanted to retain the death penalty for murder in the Services, even if we abolished it for murder in civil law.

I do not think that is a fair inference to draw, either from the discussion or from the vote, especially by an hon. Member who thought it proper to use the word "hoodwinked" about the arguments of other people.

The day before the other debate references were made to the debate on the following day and a specific Amendment was on the Notice Paper dealing with murder only. Had anyone wished to express the view that the matter should concern murder only, he could have done so; but nobody expressed that view.

The hon. Member would never address to a court in which he was briefed on either side the kind of argument which he is asking the Committee to accept. I think that on consideration he will realise that his argument does less than justice to the intelligence of his audience. It is not quite fair to do things in that way. All that the great majority of the House on that occasion were saying is exactly what I am saying now: that the law about the penalty for murder in the Armed Forces
1891
should be exactly what the law about the penalty for murder is in civil life in this country.

Rightly or wrongly—the majority of the House thought we were wrong—at that time we wanted to make a breach in the death penalty for murder; and if we had the opportunity of beginning with the Armed Forces, we saw no reason that we should not do so. We made no complaint then, and make no complaint now, if the vast majority, even of those right hon. and hon. Members who wanted the abolition of the death penalty for murder, said, "You ought not to do it bit by bit, beginning with the Armed Forces, but you ought to wait until you have an opportunity of dealing with the whole matter."

We now have the opportunity of dealing with the whole matter. What the hon. Member for the Isle of Thanet wants the Committee to do is exactly the opposite of what the House of Commons decided to do on the occasion which he has in mind. It is he who is in the inconsistency, not my hon. Friends and myself. The House of Commons has so far decided the matter in principle. It may change its mind or modify its opinion or qualify it; another place may have other ideas about it; we do not know what the ultimate position will be, since, as has rightly been said in an interjection, the Bill is not yet an Act of Parliament. But so far as the House of Commons can decide the matter in principle at this stage, it has decided that we shall no longer inflict the death penalty for murder but shall substitute for it a sentence of life imprisonment.

I say to the Committee—and I should have thought that it hardly needed saying—that there are few people in this country who would be in favour of the hon. Member's proposition—that a soldier or a sailor or an airman should suffer a greater penalty if he commits the crime of murder than should any other citizen. That is what the hon. Member is saying. He gave us his reasons and went so far as to say that the real reason he wanted the death penalty for anything was to be able to use it as a sanction for discipline.

I do not think that many right hon. and hon. Members who voted against me on this issue would support him in that. They meant what they said—that they
1892
believed the death penalty to be a greater deterrent than any other, that it was a real deterrent and that there would be fewer murders if we had it than if we abolished it. They wanted to retain it for that reason and not on some social background or argumentation about the ultimate sanction of discipline.

What I am perfectly certain no House of Commons, and certainly the overwhelming majority of public opinion in a country where we still conscript people into the Armed Forces at the age of 18, would never tolerate for one moment is the idea that if we abolish the death penalty for murder for everybody else, we should retain it for conscripted boys in the Army because they happen to be serving in Malta, Cyprus, or elsewhere. I think that is a monstrous proposition, and I do not believe that the majority of those hon. and right hon. Gentlemen who are in favour of retaining the death penalty on other grounds will take the view of the hon. Member in this matter. I shall say no more about the principle of the matter.

It may be that he has some technical point here. It may be that the advice which I have had is mistaken. It may be that the Bill as drawn would produce the monstrous result, as I think it is, which the hon. Member wants. If that is so, and I shall listen with great attention to what the Attorney-General has to say to us a little later, if the hon. Gentleman is right, then certainly there ought to be an Amendment on the Report stage in the terms which the hon. Gentleman recommends to us, but including the word "not". If not, if the position is as I am so far advised, I think that no Amendment is either necessary or proper, but I hope, if it is not an impertinence to say so, that the hon. Gentleman will reconsider the implications of the argument which he has advanced, and will not ask the Committee to divide upon that proposal.

It may be for the convenience of the Committee if I said something now on the problem which has arisen as a result of the speech made by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) and the intervention of the hon. Member for Nelson and Colne (Mr. S. Silverman), which showed that, although I gather they have taken the best advice on both sides,
1893
they take diametrically opposed views as to the operation of this Bill. That may not be unusual as between different branches of the profession.

I listened with interest to that argument, and I must say, although it may not be very helpful, that I could not regard the matter as at all free from doubt. I think my hon. Friend and his hon. Friends have served a useful purpose by tabling this Amendment. Whether or not the Bill as drawn applies to trials by courts-martial depends, in my view, upon the interpretation which the court places on the word "court" in the Bill. If the court held that "court" includes courts-martial, it may be said—and would be said, I think—that this Bill applies to trials by courts-martial.

Usually, I think it is the case in an Act of Parliament that, when we intend to exclude from an Act of Parliament courts-martial when dealing with other courts, we draft the Bill in such a way as to say "courts other than courts-martial," which supports the view that unless something is said the words "courts" will be interpreted, at least by those who read the Bill, as including courts-martial, but it does not, of course, necessarily follow that when the arguments on this subject came before the court, that view would be upheld.

It therefore seems desirable that the Bill should make it clear beyond doubt whether it does apply to trials by courts-martial. If I might remind the Committee, the position at the moment is that no one can be tried for murder by a court-martial in the United Kingdom. The only question here raised by the Amendment would, therefore, appear to be whether anyone can be tried by court-martial outside the United Kingdom.

I know of no enactment requiring a court to pass a sentence of death for murder except the Army Act, 1955, the Naval Discipline Act, and the Air Force Act, 1955. If there are other Acts which require a court to do that, one would like to hear of them. If I am right in what I say, then the words
every enactment
in the Clause must mean those Acts.

The hon. Member for Nelson and Colne (Mr. S. Silverman) is under a
1894
misapprehension if he says that those Acts require sentence of death to be passed in those circumstances. Section 70 of the Army Act leaves it to the discretion of the court-martial and does not require it and is therefore entirely different from the civilian law.

The Clause says:
… every enactment requiring a court to pronounce or record a sentence …
Whether that applies to the Army Act, the Naval Discipline Act, or the Air Force Act, depends on whether "court" includes "court-martial".

It would apply—I am not responsible—[Laughter.]—for the drafting of the Bill. What I was saying was that one way or the other it should be made clear beyond doubt. I venture to suggest that few people reading the Bill in the light of the Second Reading debate would realise, if the hon. Member's view is right, that its operation extends beyond the United Kingdom to trials for murder by courts-martial. I therefore support my hon. Friend the Member for the Isle of Thanet in what he says about the necessity of a clarifying Amendment to make it clear whether the Bill is to apply to such trials outside the United Kingdom.

Of course, that is a matter for serious consideration. I cannot recollect anything being said on this subject either in the debate before the Second Reading, or in the course of the Second Reading debate. The Amendment moved by my hon. Friend has served the useful purpose of drawing attention to this important aspect, which, whatever conclusion one might reach, does require very serious consideration, particularly when one bears in mind that where troops are stationed in a Colony or Dominion perhaps one would normally suppose that if murder is committed, the trial would normally take place before the civil court of that Colony or Dominion. One has to consider the relationship between the powers of such courts in such territories and the powers of a court-martial in relation to a charge of murder, if the case comes before a court-martial.

1895
I must say that I should have thought it was at least desirable at this stage to make it clear what is the operation of the Bill as it stands and to limit it to what was the subject of discussion on the Second Reading. When one sees what Amendments, if any, are made to the Bill, it may be necessary on Report or at a later stage to make some corresponding Amendments to military law, to Naval law, or to Air Force law. For instance, if I may put it in this way, it may or may not be necessary, if some Amendments of this Bill be carried, to make some corresponding Amendment in relation to that law. It might be suggested that we could very well leave that to be done in the Army Act, but, of course, under our new procedure in relation to that, it will be quite a few years before the Army Act is amended.

Would the Attorney-General be good enough to refresh his recollection on that point? Surely that is not correct, because, whereas at the end of five years it will be obligatory for the matter to be referred to Parliament, there is nothing to stop the Government putting down an Amendment.

I think one ought to look into that. I do not want to commit myself at the moment, because the procedure is new to me and I have not got it completely in mind. It is obviously a matter which calls for careful consideration. I would suggest that it would perhaps be best to approach this matter first of all by limiting the Bill to the United Kingdom and trials in the ordinary courts, and then, if need be, make adjustments in relation to trials by courts-martial at another stage in another way.

May I ask the Attorney-General one very short question? He said that at the present moment no Service man would be tried for murder in this country by a court-martial. Could he tell us whether that depends on statute or whether it is merely practice?

During the speech of the hon. Gentleman who moved this Amendment,
1896
the hon. Member for the Isle of Thanet (Mr. Rees-Davies), he made a charge that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was guilty of hoodwinking the Committee by not making provision for this point to be cleared up. I do not go very far with the hon. Gentleman in suggesting that there is anything like hoodwinking, but I do think there is some doubt about it, and I would like to see the matter cleared up, as can quite easily be done, in my view, by an amendment to the Army and Air Force Acts.

When this matter was before the Select Committee, I was in no doubt that it was necessary to retain the death penalty in order to buttress discipline in certain circumstances. During the course of the Committee stage of the Army and Air Force Acts, I made that quite clear. But I would never have been prepared to go so far as to allow my name to be given in support of a proposition that we would abolish the death penalty as a sentence imposed by courts in this country, whether civilian or courts-martial, and retain it for a charge of murder in a Colony or any other place where British troops were serving overseas.

What I regret about this Amendment is that this is the first occasion on which we have had to discuss the discipline of the Armed Forces since the Select Committee Report and since the new Army and Air Force Acts became law. We are establishing a precedent. One thing we tried to do was to take the discipline of the Armed Forces away, as it were, from the heat and passion of debate in the House of Commons, sending it upstairs where the matter could be considered quite dispassionately.

I would have thought that the hon. and learned Gentleman the Member for the Isle of Thanet would be very well advised and would be serving the interests of the Armed Forces, which I am sure he has at heart, if he agreed to accept from the Government an assurance that if this Bill becomes law they will undertake to amend the Army and Air Force Acts in accordance with whatever the decision of the House may be.

The hon. Gentleman makes that point, but surely it is exactly the other way round. Legislation is being promoted, and, if this clarifying Amendment is accepted, opportunity will arise
1897
in the near future, when the matter comes back in the Naval Discipline Act, for Service questions, including this very matter, to be discussed during a proper Service debate.

My point is this; I do not want the discipline of the Armed Forces to be dealt with in this Bill at all. I wish it to be dealt with under the Army and Air Force Acts, and if there is any point in doubt I should like it clarified in the Army and Air Force Acts and not in this Bill.

In moving this Amendment, which has revealed that there is a doubt, the hon. Gentleman has performed a very valuable service. But I do not want the discipline of the Armed Forces dealt with in this way. I think it far better that the doubt should be cleared up by the Law Officers of the Crown and I should be prepared to accept an assurance on behalf of the Government that the matter should be cleared up in that way after the most careful consideration. But there must be a distinction between the retention of the death penalty for the purpose of buttressing discipline and retaining it on what, after all, is a civil charge.

With respect to the hon. Member for Nelson and Colne (Mr. S. Silverman), I do not think that he has given this matter sufficient attention when preparing the Bill. Perhaps he was so busily engaged with the other aspect of this matter that he did not sufficiently consider the question of the Armed Forces. It would be a great pity were anything rushed through during these few hours of Committee discussion which would result in the Services being tied down, probably for a great many years, to something unsatisfactory.

I am not clear about what the hon. and gallant Gentleman means. Does he mean that I have not given sufficient attention to the legal point about what would be the effect of the Bill as drawn; or does he mean that I have not given sufficient attention to the principle of whether the abolition of the death penalty ought to apply to soldiers?

I am covering the whole aspect of this matter. The hon. Gentleman has not given sufficient attention to making the matter clear to the Committee. There exists an element
1898
of doubt. Many hon. Members are in doubt, including my right hon. and learned Friend the Attorney-General.

Here there are two things involved. One is the question whether the Bill ought to apply to courts-martial. The second is: does the Bill, as drawn, apply to courts-martial? What I wish the hon. and gallant Gentleman to tell me is which of those two things—they are quite different—he thinks that I have not properly considered.

I do not think that the hon. Gentleman has properly considered either of them. Look at HANSARD of 9th February, 1955, when I see that the right hon. and learned Member for Rowley Regis and Tipton (Mr. A. Henderson) said:
We have not got to the point where war can be abolished. We have to cater for what might happen in the event of war, and as we have our Armed Forces we have to have an Army. If there is an Army there has to be a code of discipline, otherwise the Army will be something of a rabble. That is the whole basis of the Bill which we are considering tonight, and all I am saying to my hon. Friends is that, with all respect, there is little which divides hon. Members on this side of the Committee on this problem of capital punishment, certainly in relation to the question which will be debated tomorrow. But tonight we have to look at this question in relation to the maintenance of the discipline of the Armed Forces."—[OFFICIAL REPORT, 9th February, 1955; Vol. 536, c. 1983–4.]
The right hon. and learned Gentleman made the point at that time, and I do not know what has happened since.

The thing which disturbs me is the question of Service men overseas. They may not be in Malta or Cyprus, they might be in a part of North Africa—in Libya—and what happens then? I can see many anomalies arising out of this Bill if it goes through in its present form. We must ask the hon. Member for Nelson and Colne to explain in greater detail than he has done so far. I know that the Bill concerns only murder, but is not the hon. Gentleman concerned about a man being shot for other offences? I should like to ask why he has not included that in his Bill.

I would gladly answer the question of the hon. and learned Gentleman, but for two points. One is that I gave a full answer to it during the Second Reading debate, and the other is that, were I to answer him at this stage, I should be out of order.

I have never drawn any distinction between murder by private of private on the one hand, and by private of officer on the other—any more than I have drawn a distinction between murder by a butler of his boss and by a butler of a fellow servant.

If the hon. Member has had any experience of these things he will know that the commanding officer is usually in front and is shot from behind. This matter needs very careful consideration. Some hon. Members are not at all happy about it. I repeat my charge that I do not think that the hon. Member has considered the matter with sufficient care.

Let us consider the position in the case of Dutch military law. Holland runs her affairs very sensibly. The death penalty still exists under her military law, but it is only used in the case where, in the opinion of the judge, it is particularly necessary for the country's safety. The death penalty was abolished in Holland in 1870 and reinstated after the Occupation, nine or ten years ago. It is well worth considering this matter. I hope that my hon. Friends will vote against the Amendment because the position is not clear, and we should register our disapproval.

The two Sections in the Army Act which are affected are Sections 70 and 71. The words "or murder" should come out of Section 70 (3, a) and the word "death" should come out of Section 71 (2). That is surely something for the Government to deal with, either upon the Report stage or by other legislation. The Bill deals with the peace-time situation, and the Army Act governs the
1900
discipline of the Army in peace-time. In war-time special legislation is always required. If the death penalty were necessary in war-time, in circumstances of violence and the stress of war, it would be a different matter. The Government would ask for it upon the day war was declared, as they always do.

But we are not considering war-time circumstances here. These are peace circumstances, and if the death penalty for murder is to go—which is the purpose of the Bill—it would probably be the Government's intention that it should also go from military law, as it does from civil. I suggest that we leave the matter as it is now. It is a question for the Government to consider. We should leave the Bill as it is now, and, either upon Report stage or by a separate Measure, the Government can do what they want in relation to the military law.

It is clear that we were justified in putting this Amendment on the Paper. The hon. Member for Nelson and Colne (Mr. S. Silverman) said he was of the opinion that the Bill applied equally to the forces overseas and to the civil courts in this country. The hon. Member for Dudley Mr. Wigg) later said that he wished it to apply to National Service men serving overseas.

No, but the Armed Forces overseas. Another aspect of it has not been considered this evening in relation to the circumstances in which some of our forces operate overseas. They have considerable difficulty. There is great danger to our security forces in areas where there is much unrest. If the interpretation of the hon. Member for Nelson and Colne is correct, it will be impossible for any court-martial or military court to impose the death penalty.

If we accept that, murder overseas would be excluded from the death penalty. We should arrive at a situation where any member of the British Forces who murdered a member of the population in a Colony overseas could not be arraigned for murder and be sentenced to death. It would be equitable to say that no member of the civil population who might murder a British Service man could be charged with murder. If that is the case, it places members of Her Majesty's Forces in a position in which they should not be placed.

The hon. Gentleman has not thought this out. In so far as the criminal law of the Colony remains as it was before, and is not affected by the Bill—except in so far as colonial legislation may affect it—it means that an inhabitant of the Colony will suffer a greater penalty for murdering a British soldier than the British soldier suffers for murdering the native. That is a result which the hon. Member presumably desires.

I do not desire it at all, but it would be quite wrong at this time, and in the circumstances that exist in certain parts of the world where our Armed Forces are asked to maintain security, that the death penalty should be removed from people who might desire to bring about the death of British Forces serving overseas. I therefore join with those who ask that these matters shall be considered at a later stage.

At this stage we should take the advice of the Attorney-General. In certain circumstances we are right to consider the safety of our men serving overseas by the maintenance of the death penalty for murder, both by members of the British Forces overseas and by civilians who might wish to commit such a crime against members of the Armed Forces. It would be a deterrent for those who would murder members of the Services. Retention of the death penalty would protect British Forces. I also believe that it would act for the protection of members of the civil population in areas in which the British Forces are asked to operate. In those circumstances, I ask the Committee to follow the line suggested by the Attorney-General.

I want to take up straight away the point raised
1902
by the hon. Member for Gillingham (Mr. Burden), who said that he thought it undesirable at this stage to do anything which would take away the liability to the death penalty from persons who tried to compass the death of British Service men overseas. May I respectfully point out that whatever interpretation we give to the Bill, it cannot possibly have that result which he feared. A citizen of a Colonial Territory who committed the crime of murder against a member of the British Armed Forces would be tried by the courts in that Colony under the laws of that Colony, which would remain exactly the same.

May I remind the hon. Member of what he said? He said that he thought it was undesirable at this stage to take the liability to the death penalty from persons who might be trying to compass the death of members of our Forces serving overseas. What I pointed out to him was that on any interpretation the Bill does nothing of the sort. He knows that quite well.

He counters that argument by saying that it might take away the liability to the death penalty from British soldiers. That is quite true on certain interpretations of the Bill, but let us get this point quite clear and out of the way at once: there ought not to be any attempt to prejudice the Bill by suggesting that anything in it could take away the liability to the death penalty from persons trying to kill British soldiers. The attempt to bring that argument forward is an attempt to prejudice the Bill and is based on a misconception of its provisions.

The hon. Member for Gillingham (Mr. Burden) is also wrong on the other point, because where a soldier murders a civilian he is not tried by court-martial; as a matter of practice he is tried by the local law. Murder trials by court-martial in a Colonial Territory take place only where the murder is by one soldier of another.

I am obliged to my hon. and learned Friend. It is clear that the speech of the hon. Member for Gillingham has no bearing on the point.

1903
I earnestly ask the hon. Member for the Isle of Thanet (Mr. Rees-Davies) whether he will consider withdrawing the Amendment. In the light of the various arguments which have been advanced, I believe that would be the right course. The Attorney-General told us that he was not certain whether the word "court" included a court-martial. I must say that I am surprised that so straight-forward a matter as that should be in doubt, but we must accept that opinion.

I think that both my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), who promotes the Bill, and the hon. Member for the Isle of Thanet (Mr. Rees-Davies), who moved the Amendment, were working on the assumption that the Bill applies to courts-martial.

I do not know whether the hon. Member was present when I addressed the Committee at the outset. I made it quite plain that my Amendment was a clarifying Amendment, but that if it was a substantive Amendment we wanted to retain the existing law and that the appropriate place for this matter to be dealt with, if it is to be dealt with, to exclude murder, was as suggested by the hon. Member for Dudley (Mr. Wigg)—that is, in another place, by another Committee, namely, the Committee dealing with the Naval Discipline Act, who will be dealing with it in due course. Therefore, this is undoubtedly a clarifying Amendment, but it is also one of principle to secure that we shall not include the Forces overseas in the ambit of the Bill.

Very well. In that case, we can proceed on one of two assumptions. One is that the Bill as at present drafted does apply to courts-martial. If that is so, the effect of the hon. Member's Amendment, I understand, would be to say that the Bill is not to apply to courts-martial.

What is the scope of application of that? Let us clear away another argument which has been brought in, I think, merely to cloud our counsels. The question of maintenance of discipline in the Armed Forces is not really in issue on the Amendment. The Army Act and the other Acts relating to the Armed Forces prescribe the penalty of death for those
1904
offences for which it is now prescribed by the civilian law, following the sound principle that where what is a civilian offence is dealt with by a court-martial, the penalties should be the same as in civilian law.

The Service Acts also provide the penalty of death for certain specific military offences, all of which it would be true to say, in layman's language, are now offences which have about them in one way or another the taint of treason. They imply resolute defiance of the authority of the State or an attempt to betray the State.

That is not correct so far as the Naval Discipline Act is concerned. In that case there is the question of desertion in the face of the enemy and in convoy, seducing a person away from his allegiance, and a wide range of offences which have nothing to do with treason.

It is equally true of all those offences that none of them is in any way touched by my hon. Friend's Bill. It should not be necessary to labour the point. The Bill relates to murder, and to murder alone. Whether it is thought that the death penalty is needed in military and naval law for other matters or not, does not arise on the Bill or on the Amendment. Nobody need be afraid that the passage of the Bill without the Amendment would affect the operation of the death penalty for any offence other than murder. Surely nobody would suggest that the discipline of the Armed Forces depends upon maintaining the death penalty for soldiers, sailors and airmen who commit murder. It may be argued that it is necessary for discipline to maintain the death penalty for Service men for certain other offences, but that is not in issue in this Bill.

I ask the hon. Member for the Isle of Thanet to consider this. Whatever interpretation is put upon the Bill, one thing which would be certain if the Amendment were passed is that the House of Commons would be saying, "We are of opinion that it is desirable, while abolishing the death penalty for civilians and soldiers committing murder in the United Kingdom, to retain it for Service men committing murder abroad. If there is any sense in any of the arguments which have been advanced, that would be the
1905
effect of the Amendment. I am sure nobody really wants to say that.

We do not want to commit ourselves, in advance of the further consideration that may have to be given, as my hon. Friend the Member for Dudley suggested, to any alterations of military law, to the view that there should be any distinction between the penalty for murder committed by a British soldier in the United Kingdom and the penalty for murder committed by a British soldier in, say, Cyprus. I submit that if the Committee were to carry the Amendment, it would, in effect, be assenting to that profoundly undesirable view.

The hon. Member for the Isle of Thanet may have other opportunities to press other aspects of the matter with which he is concerned. It may or may not prove necessary by other legislation to clear any doubts which have been raised, but surely we should be wrong, by passing the Amendment now, to express approval of a proposition which I do not believe anybody could really defend.

I gather that there is a little uncertainty about the advice I sought to give to the Committee and I wish to seek to summarise it, for it is a rather complicated matter. First, I would say that there is a need for a clarifying Amendment. I hope I have convinced the Committee of that. Secondly, I would say that the Amendment proposed by my hon. Friend is clarifying in one direction. If the Amendment were carried, it would, as the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) said, be easy on Report to take the word "not" out so that we could have precision when the Bill leaves the House.

Furthermore, if the Amendment is carried it will give an opportunity for considering further the suggestion put by the hon. Gentleman the Member for Dudley (Mr. Wigg) and by the hon. and learned Gentleman the Member for Northampton (Mr. Paget) that the proper place for making an amendment to Army, Navy and Air Force law is not a Bill of this character but the Army Act, the Naval Discipline Act and the Air Force Act. There are difficulties about that in view of Section 226 of the Army Act, but if we accept the Amendment now it will have the effect of clarifying the position.

1906
It does not prejudice further consideration on Report. Indeed, if other Amendments to the Bill are perchance carried it may be that one will want further Amendments—I do not know; I cannot anticipate the future—in relation to military, Air Force and naval law. Therefore, the advice I gave to the Committee was to accept the clarifying Amendment.

I would hope that the hon. Gentleman the Member for Nelson and Colne would support a final plea that perhaps we could reach a conclusion upon this matter, which has been very thoroughly debated. It does not seem to me that we can make much more progress upon it in the absence of a clarifying Amendment.

I wish I could accept the right hon. and learned Gentleman's view. I know what he was saying, and I think that in principle it is a very reasonable thing to say. He is saying it is possible that there is some doubt and if it is even possible that there is some doubt a clarifying Amendment would do no harm. That is what the right hon. and learned Gentleman is saying, and so far I agree entirely with him.

However, what he is asking me to do is to accept a clarifying Amendment in terms contrary to the position I hold. If all the hon. Member for the Isle of Thanet (Mr. Rees-Davies) wants is a clarifying Amendment without the Committee's coming to a final decision in principle, he could have put down a clarifying Amendment which said, not that the Bill shall not apply, but that it shall apply. If the hon. Gentleman, purely for clarifying purposes, would like to move his Amendment in that form, I should be glad to accept it. It would be quite as good a method of clarification, if that is all he wants, as the Amendment as it is; whereas if we accepted the Amendment as it is we should be lending support to the view which I most firmly believe is the wrong view, that, to use the words of my hon. Friend the Member for Fulham (Mr. M. Stewart), there ought to be a distinction between the penalty we inflict upon a British soldier who commits murder in this country and a British soldier who commits murder in a Colony or elsewhere abroad.

1907
I am not prepared, even for the purpose of clarification, to accept any such distinction which, I think, would be a monstrous distinction. If the hon. Member for purposes of clarification will move his Amendment in the form which will provide what the Committee has always desired, that the law and the

I understand that the next Amendment, in page 1, line 9, at the end to insert:
Provided that this subsection shall not apply to the murder of a police officer acting in the execution of his duty.
is not to be moved.

May I suggest, with respect, that this Amendment and a number of others are susceptible of grouping in one general discussion, which would considerably expedite the proceedings? That would be much better than to have a debate on every single Amendment separately, with arguments very largely repeated.

On a point of clarification, Sir Rhys. Do I understand that the Committee will not now be concerned with the two Amendments previous to the one which the hon. Member for the Isle of Thanet (Mr. Rees-Davies) has begun to move?

The Amendment which I have moved relates to a murderer who has committed a previous murder. Let me say straight away that it does not apply to what Mr. Gerald Gardiner thought it applied to in the brief which he has sent out to most hon. Members recently. That is to say, this is the case of the mass murderer, a double murderer, a person who is guilty of more than one murder. It is true that it can apply to somebody who was convicted years ago of one murder and who has then committed a second murder, but the purpose of this Amendment is to meet the really fiendish case of the type of killer of whom I will give a number of examples.

I believe that, although this is a narrow Amendment, it is none the less an important one to protect society from the class of killer known as Jack the Ripper. The case that I have in mind first is the case during the war, in 1942, of a
1912
man called Cummins. Cummins was the terror in the West End of London of a certain class of women. He murdered seven prostitutes and attempted to murder four others. He was perfectly sane. There was no dispute about his sanity at all. He was tried in respect of the first murder. I knew the case well. On the first murder he was convicted and sentenced to death, and he hanged.

If this Amendment were passed, Cummins could have been brought up on the second indictment and, having been found guilty on that, he would be sentenced to death in respect of the second murder. There are many cases which are the most serious and most heinous known to our law of murder, and we are anxious that that class of killer should meet the ultimate sanction of death.

That is one class of case. There are two or three other illustrations which I can give. There is the case, a fairly recent one, of Alfred Moore, who killed two police officers, and there is the case of Christie, who killed many women one after the other and yet who still, in these circumstances, might be able to escape. There are also other cases, such as the towpath murderers, and others.

That is one class of case in which we have a murderer who goes berserk, and who may have a certain pathological background, like Haigh and others. There is a second group of persons who may also go berserk with a machine-gun in certain circumstances and kill a number of people, or who may wipe out a whole family. There is a third class of case, which was alluded to in the Second Reading debate by my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon), who referred to circumstances in Upper Silesia before the war where a number of people were kicked to death. There is also the case about which there is a film called "Trial," which has recently been showing in London. It concerns a negro and is a case in which a murder was committed in circumstances of racial violence, or things of that kind.

Wherever, therefore, we get more than one murder perpetrated by a murderer, it is fairly clear that, subject to the law of insanity—and, if the person is insane, the same law will apply—and as those who are associated with me in this Amendment feel, there should be protection
1913
of the public against this kind of appalling killer. We feel that not only is it a matter of a deterrent, but, far more than that, we feel that it is the ultimate human sanction, and that the crimes of these people are so desperate and so terrible that nothing else than death will meet the public conscience.

I want to take this argument foursquare. We have heard time and again that it is solely one of a deterrent, and on this I want to say that retribution is the background to this particular case. All I can say is that if one's whole family were wiped out at one time by this kind of killer—the man like Christie, Haigh or Cummins—in a case like that, the public conscience is not ever going to be satisfied with a sentence of life imprisonment. Nothing else than the ultimate sanction which the State can provide will meet that class of case.

May I put a question to my hon. Friend? As I read the Amendment, it is to apply to any person previously convicted of murder. In the cases which my hon. Friend has instanced, was not the murderer accused of numerous murders convicted only once, and is it not the case that only once in a hundred years has a man been convicted of murder a second time?

That shows that the noble Lord has not understood the Amendment. The Amendment provides that it shall apply only to a man who has previously been convicted of murder. [HON. MEMBERS: "What does that mean?"] I will explain what it means, and it is very simply this. I will refer to one Cummins case. Cummins was put up on seven separate indictments for seven different murders, and this is what happened in that case. The first indictment was taken, he was found guilty and he was sentenced to death. If, in fact, this Bill goes through in its present form, and Cummins had been charged, on the first murder he would have been found guilty of the crime, but would not have been sentenced to death, but to life imprisonment. Therefore, he would immediately be put up on the second indictment, found guilty on the second indictment, and would then be sentenced to death, because he would then have been previously convicted of murder.

That is why I say that those who read this first of all thought that it related
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to cases where somebody was convicted 15 or 20 years before. It does not. It applies to the mass killer, the person who is a double murderer, or who commits two or more murders, and in those circumstances we believe that the death penalty should be retained for the second murder which such a person commits.

I apologise for interrupting. I am in great difficulty with the interpretation of the Amendment. It seems to me—I am sure that I am wrong, and, if I am, I hope that the hon. Member will explain—that the Amendment as drawn does not say what he intends it to mean. The words on the Notice Paper are:
Provided that this sub-section shall not apply to a murder"—
committed by whom?—
committed by any person previously convicted of murder.
In other words, before a man can be executed under this Amendment, he must have committed one murder, been convicted of that murder, and then have committed another murder. That is what the wording says, and it is the exact opposite of what the hon. Member says that he wants to do.

If I may follow the suitable advice of Alice in Wonderland, what I say three times is true. I will say for the third time what it means. It means, in fact, that this subsection—perhaps the hon. Member, having intervened as he so often does, might pay me the courtesy of listening—applies to a murder committed by any person previously convicted of murder. It is quite simple. A man must be charged with murder on indictment; having been found guilty he is then tried for the second murder and on the second trial he is found guilty of murder and sentenced to death. That is the position and it is quite plain.

Not only is that desirable, but it would meet cases which are disturbing the public conscience. I want to remind my hon. Friend the Member for Southgate (Sir B. Baxter) of what happened in his constituency in 1949, when the death penalty question arose and there was a particularly vile murder. The result was that the whole area was deeply upset. If the Amendment is passed, it will go some way to meeting the case of the really devilish cases, men like Cummins, Jack
1915
the Ripper, Haigh and Christie, who commit more than one murder. They will not escape the gallows for deliberate murders, unless they escape them by reason of their being insane.

The hon. Gentleman said, quoting from the famous work of Mr. Lewis Carroll, that what he said three times was true. I think that could only be so if he applied another quotation from the same book, which is that words shall mean what the hon. Gentleman says they mean and that he shall be the master of what they mean. It is really quite impossible to apply the wording of the Amendment to the hon. Gentleman's argument, or to the thing which he says he wants to do.

As far as I can see, if his Amendment were incorporated in the Bill, Haigh, Christie, Smith—the "Brides in the Bath" murderer—and all the multiple murderers he has in mind would get the benefit of the abolition of the death penalty and would not be hanged at all for the simple reason that not a single one of the multiple murderers he has in mind ever committed another murder after being convicted of a previous murder.

The hon. Gentleman must not be impatient. There are other people who can read plain English as well as he, and the plain English is on the Notice Paper. In case the hon. Gentleman has forgotten what the words of his Amendment are, I propose to read them to him again. They are:
Provided that this subsection shall not apply to a murder committed by any person previously convicted of murder.
In other words, to be hanged one has to get over three hurdles. First, one has to murder, then one has to be convicted of that murder, and then, after one has been convicted of it, one has to commit another murder.

That is what the hon. Gentleman's Amendment says, and it does not apply to any single one of the instances which he quoted and can only apply to the case which Mr. Gerald Gardiner argued in the note to which the hon. Gentleman has referred, that is to say, a murderer convicted of murder, reprieved, released and
1916
then committing another murder. If the hon. Gentleman does not wish the death penalty to apply in that case, but wishes it to apply only in the case of a multiple murderer who is what one may call a first offender at the time that he is convicted, then he will have to move a very different Amendment from this one, because it is quite plain that the words on the Notice Paper have nothing whatever to do with the case he wishes to meet.

I support the Amendment because I agree with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) in every word he has said so far, and I want him to address himself to what he and many hon. Members on this side of the Committee take this Amendment to mean, that is, that it will exempt from the benefit of this Bill someone who commits a murder, having already been convicted of murder.

I support the Amendment with a certain amount of uncertainty and I hope that this debate will clarify that uncertainty one way or another, because I was tremendously impressed by the dignified and reasonable statement made after the Second Reading of this Bill by the prison warders about their own position if the Bill were passed.

The man who was convicted would, we hope, be in gaol. He would have had, as far as I can see, the ultimate sanction of the law. If this Bill is passed without amendment, everything that the law can do to him will have happened to him, so that if, during his time in prison, he should take the life of one of those whose duty it is in prison to look after and keep him there, then he need have nothing more to fear.

My hon. Friend says that he could be flogged. I suggest that flogging is not a sufficient deterrent to set up against this second crime of murder. This is the one exception I would make at present, and I would make it in the interest of those men who will have to devote their lives in the years ahead to looking after murderers.

I know it has been said that no murderer in prison ever commits a second murder, and there is a mass of evidence,
1917
not only in this country but in many others, that convicted murderers in prison do not, in fact, ever murder a warder. But we have to remember that men who are in prison serving life sentences for murder are, on the whole, reprieved murderers; that most of the men in prison have been reprieved for some reason or other. They are a special group. Under this Bill we shall have the whole of the murderer group inside the prison, and it seems to me that we need this safeguard to protect the warders in the future. For that reason, and not for the reasons advanced by the hon. Member, I support the Amendment.

On a point of order. I have an Amendment on the Order Paper, Sir Rhys, in page 1, line 9, at the end to insert:
Provided that this Act shall not apply in any case in which the murder was committed by a person already serving a sentence of imprisonment for life.
It will be appreciated that that Amendment to some extent overlaps the Amendment which we are now discussing. I understood that it is intended that it should be discussed with the proposed Amendment in the same line in the name of my hon. Friend the Member for Solihull (Mr. M. Lindsay), at the end to insert:
Provided that this subsection shall not apply in any case in which the offender is convicted of murder committed while he is confined in any prison or, while outside the prison, he is in the custody of an officer of the prison.
If that be the case, I should not wish to address the Committee now, but I am not certain that it is the case.

After listening to the hon. Member for the Isle of Thanet (Mr. Rees-Davies) I am disturbed. Although my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) may well be right in his views about how the Amendment is worded, there is another point which I wish to put directly to the hon. Member.

I appreciate that he has in mind the question of a mass killing, someone who kills a number of people at the same time or in a series of events, rather than
1918
one isolated incident in which someone dies violently at his hands. The hon. Member declared that such a person must be one of whom there is no dispute about his sanity, and, declared the hon. Member, there is no possible reason why that person should not die. It is not deterrence but retribution which the hon. Member had in mind.

As a medical man, I cannot accept the personal arguments of the hon. Member. I thought his illustrations were faulty. To talk in this connection about people like Christie, who, I admit, was hanged, but who was a necrophiliac, seems a strange thing to me. I speak as a medical man and not as a jurist. I am astonished that there can be any dispute about their sanity.

Suppose a man commits a murder on a sudden impulse, or for some reason kills two people instead of one. Suppose he fires a gun, revolver or rifle and kills the first person against whom he is directing his hate or aggression, and the bullet is deflected through the body of that person and kills a second person. On the argument of the hon. Gentleman, is it not fair to say, "Here is a mass killer"? Because that man has killed a second person, perhaps unintentionally, he must die by hanging. I think that the hon. Gentleman is wrong, not only because of what was said by my hon. Friend the Member for Nelson and Colne, but because he has not thought out the full implications of his own Amendment.

Without prejudice to the interpretation of the Amendment, I would point out that in every other offence in criminal law consideration is given to the person's record. The courts follow the principle that where a man has been previously convicted or has had a bad record for serious offences the punishment is proportionately greater.

Here, no matter how heinous the first crime, exactly the same punishment is given if a series of crimes is committed, whatever the person may do. Is it not right, when we are considering punishment, that there should be an increase for persons whose crimes are greater?

On the matter of punishment and retribution, there comes a time when the activities and behaviour of somebody is such as to take them outside the ordinary class of such offences, and there must be
1919
an especial penalty. Certain cases have been mentioned, including the "Terror of the West End of London," of which I know nothing. There will be cases in which a man feels that he has got over the horror that any human being feels about killing and can continue on that path, because he subconsciously tells himself that there is no further penalty he can incur.

I said that I was speaking without prejudice to the wording. There may be a great deal of substance in an objection to the wording. Where a person is suspected of having committed more than one murder and because the penalty up to now has been the supreme one, he has been indicted only for the murder of one person, as in the case of Alfred Charles Whiteway, who was indicted for the murder of one girl only. I see the right hon. Member for South Shields (Mr. Ede) shaking his head. He may have more experience in this matter. In my experience, where a person is suspected of several murders he is tried only upon the first indictment, and, if he is acquitted on it, the second indictment comes up and he is tried upon that. There is no purpose in having two separate indictments, because if the person is convicted on the first the penalty is death, and there would be no point in succeeding on the second indictment.

I am much obliged to the right hon. Gentleman. My phraseology was, indeed, at fault.

The point I was making was that when the death penalty was in existence, no further punishment could be imposed. When the Bill is passed, and life imprisonment is substituted for the death penalty, surely some distinction should be drawn between a person who commits a single killing and a person who commits
1920
more than one killing. If there is any deterrent in any form of punishment, there must be a further punishment for the second offence. I suggest that the sense behind the Amendment, if not the words of the Amendment, should be put into effect.

I am bound to say that I have some sympathy with the comment which was made on the statement of the hon. Member for the Isle of Thanet (Mr. Rees-Davies) about a perfectly sane man who murdered seven prostitutes in ten days. I should have thought that such a man was a little odd.

Apart from that, I wholly agree with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) on the question of interpretation. When we put into a Clause like this "this section shall not apply to a murder," words which follow that are words describing and limiting the sort of murder. They are words of limitation—"shall not apply to a murder of a certain sort." In this case, that sort of murder is a murder by any person previously convicted of murder. If we take a man and charge him a second time, with a second murder, it still is not a murder which was committed, at the time it was committed, by a person previously convicted of murder.

As to the general aim of the Amendment, although it does not achieve it, I would make this comment: we hear about the Haigs and the Whiteways, but by far the most common form of mass murder is the case of the man who, in desperation, turns the gas on, kills his wife and a couple of children, and then is brought round before he himself dies. If we go through the statistics of multiple murderers, we shall find that that type of murderer is in the majority. This again illustrates the impossibility of going on for degrees of murder.

I would point out to my hon. Friend the Member for Itchen (Dr. King) that this is not the convenient way to deal with the point he made about warders. There will be a direct Amendment on that subject which can be dealt with later. This is a misconceived Amendment, aimed at something which it does not cover, and it is an inappropriate way of covering something else which is better covered by a later Amendment.

It is clear that the wording of the Amendment is inappropriate to the circumstances cited by my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) and the intentions which he has in mind, and the Committee cannot very well accept the Amendment. I think that my hon. Friend would be well advised to withdraw it and insert on Report such correct words as he can devise to deal with the circumstances he has in mind.

I am genuinely disturbed by the reference of both my hon. Friend the Member for the Isle of Thanet and my hon. Friend the Member for Epsom (Mr. Rawlinson) to retribution. I thought that on Second Reading we kept clear of that word and were concentrating on deterrents. It is a little alarming, and rather ugly at this stage of the Bill, to hear some of my hon. Friends resort to these expressions and purposes.

The mass murder is a more distressing form of crime than the single murder, but is it not committed by a man who is more insane than the common murderer? If we are considering deterrents only, as we should, and we accept the fact that the vision of the gallows has had no effect upon the single murderer, we must conclude that that vision has been all the more removed from the same murderer who commits an offence a second and third time. Therefore, he is all the more mad and should be dealt with by a different process.

I cannot believe that the Committee is prepared to apply the death penalty to some of the crazy and insane cases that have been cited, in some of which there have been hangings and in some of which there have been successful pleas of insanity. But I beg the Committee to reject the idea that we should hang those who are second and subsequent murderers, even if my hon. Friend is capable of producing on Report the wording which would give effect to it.

I have been looking at the wording of the Amendment. Although I profoundly agree with the hon. Member for the Isle of Thanet (Mr. Rees-Davies) that provision should be made that a person who commits two or more murderers should be caught, I am not at all sure whether it would not be in the interests of the object he has in view rather to put in a fresh Amendment
1922
on Report. I suggest that it might be done by wording the Amendment in this way:
Provided that this subsection shall not apply to any person convicted of two or more murders.
I think that that would achieve the object that the hon. Member has in mind.

A number of hon. Members have indicated differing views on the Amendment and many have cast aspersions on its draftsmanship. It is a matter of great importance that I should meet the intention which I was seeking in the Amendment and which is substantially supported by a very large number of hon. Members. Therefore, I do not want there to be any doubt as to whether the language is properly and accurately expressed. I understand that it is a matter which would be proper to be considered and amended on Report.

I have heard a number of arguments, and I was very surprised to hear the argument of my noble Friend the Member for Dorset, South (Viscount Hinchingbrooke) that apparently the only thing we cannot discuss or deal with is the question of savage murderers. Savage murderers are often sane and it is quite wrong to suppose that in the case of Cummins, to which I referred, he was anything other than sane. Nobody suggested he was insane at any time although, in fact, he murdered no fewer than seven prostitutes.

I hope, therefore, that we shall have another and a proper opportunity to consider this matter untrammelled by any of my limitations, if they are mine, in the draftsmanship. In those circumstances, and in the light of the views which have been expressed by the Committee as a whole, I beg to ask leave to withdraw the Amendment.

I beg to move, in page 1, line 9, at the end to insert:
Provided that the requirement imposed by this subsection to sentence to imprisonment for life shall not apply to any person, if the jury is satisfied that at the time of the offence for which such person is charged such person though not insane was suffering from mental weakness or abnormality bordering on insanity, to such an extent that his responsibility was substantially diminished and the jury shall return a special verdict to the effect that the accused was guilty of culpable homicide; where such special verdict is found the court shall order the offender to be kept in custody in such place and in such manner as the court shall direct during Her Majesty's pleasure.1923
This Amendment, in the names of my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) and of other of my hon. and gallant Friends, seeks to incorporate into English law the doctrine which has, I understand, worked extremely well in Scotland, namely, the doctrine of diminished responsibility. One of the defects of the English law on murder, indeed of the English criminal code generally, is the very rigid and now out-of-date test of responsibility.

It is now generally recognised by psychiatrists, and accords with common sense, that there is no sharp dividing line between unsoundness and soundness of mind. There are many degrees of mental instability, varying from raving madness, through considerable delusional insanity, mental unbalance, neurosis, and so on and there is, in particular, the problem of the psychopath, midway between those the law accounts responsible and those the law accounts not responsible. There are many degrees of responsibility for crime, as there are degrees and shadings of mental stability. I am glad to see the hon. Member for Stoke-on-Trent, Central (Dr. Stross), who brings medical knowledge to these matters nodding his agreement.

The English law has been particularly rigid in this respect. We apply, in measuring criminal responsibility, a rule of law which is now known as the M'Naghten Rules, which is quite out of touch with modern psychiatric knowledge. The Scottish law takes cognisance of the fact that there are intermediate stages, that there are different stages of mental responsibility for crimes. However we define responsibility—and that is, of course, really a legal and not a medical question at all—and wherever we draw the line, there are bound to be some who are partly responsible and partly, owing to their mental infirmity, irresponsible.

The matter goes further, because those who have not entire and normal responsibility for their actions are far more amenable to provocation. As applied under English law, the test of the reasonable man is not a commonsense doctrine to apply in the case of those people. The Scottish law, therefore, adopts the doctrine, which has been worked out in the last hundred years, the doctrine of diminished responsibility. It
1924
takes cognisance of the fact that certain people are not fully responsible for their actions, but that they cannot, on any definition of irresponsibility, be said to be entirely irresponsible; in other words, they have a partial responsibility for their actions, but not the full responsibility that the normal person has.

That doctrine was considered by the Royal Commission, and it said that it had evidence and was in
general agreement that at the present time it works well and fairly and that juries do not take refuge in it without justification.
It has provided a very welcome flexibility in the Scottish law of murder. The doctrine was expressed in this way in paragraph 378 of the Royal Commission's Report, which is followed in the wording of the present Amendment:
… where the jury are satisfied that a person charged with murder, though not insane, suffered from mental weakness or abnormality bordering on insanity to such an extent that his responsibility was substantially diminished, the crime may be reduced from murder to culpable homicide.
As I said, the Amendment which I am moving follows those words.

11.0 p.m.

To amount to diminished responsibility, according to a famous charge to a Scottish jury, there must be some form of mental unsoundness; there must be a state of mind bordering on, though not amounting to, insanity—of course, if we postulate insanity, it absolves completely from responsibility; there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility; in other words, the person in question must be only partially accountable for his actions. It extends to those cases, as the Royal Commission pointed out in paragraph 382,
where there is some provocation combined with an element of mental instability, neither of which might have been enough by itself.
I hope that what I have read is sufficient to convince the Committee that the doctrine provides a welcome flexibility and a commonsense intermediate between the complete lack of responsibility, which our law recognises in rigid and out-of-date rules as a defence, and, on the other hand, complete responsibility. The Royal Commission found that it worked very well in Scotland and recommended that there should be no change. The Commission considered very carefully the question of its application to English
1925
law, and I am sure that hon. Members who have studied that part of the Royal Commission's Report must have felt that the reasons that were given by the Royal Commission for rejecting it were very weak indeed. It did not receive sufficient consideration.

The final reason which caused its rejection was that the Royal Commission had an alternative, namely, to give the juries the chance, in effect, of recommending mitigating circumstances for an offence on a very wide field. Both Houses of Parliament felt that that was putting the entire responsibility into the hands of the jury and that it was not acceptable. I think it was because the Royal Commission wanted that alternative that it did not give full consideration to the matter or, at any rate, finally rejected the introduction into English law of the Scottish doctrine of diminished responsibility.

The other reason was that the Commission felt that it might be anomalous to apply that doctrine to the law of murder only and not to the whole field of English criminal law. There is great force in that. But we are now considering the law of murder as well as the death penalty in this Bill, and there seems to be no reason why we should not discuss this subject, and, if the doctrine commends itself to this Committee, why we should not include it in the Bill in the form of this Amendment.

The matter was considered by a very strong committee, headed by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), which was set up last March immediately after the House of Commons had rejected the proposal moved by the hon. Member for Nelson and Come (Mr. S. Silverman) that the death penalty should be then abolished. The committee was set up, on the basis that the death penalty was to remain, to see in what respects the law on murder could be improved so as to introduce a greater humanity and a greater flexibility into it. This was one of the matters which were recommended by my right hon. and learned Friend the Member for Chertsey and his friends.

The committee considered various possible difficulties in the way of introducing that doctrine. One of the matters which it recommended was that the penalty should not be, as in Scotland,
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imprisonment over a term of years, up to life imprisonment, but that, in view of the close association of the offence with mental instability, it should be detention during Her Majesty's pleasure. That is why the Amendment is phrased as it is, and it is in view of those circumstances that I am moving it.

I have listened with interest to the speech of my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) and with a great deal of sympathy with the view which he expressed. As my right hon. and gallant Friend the Home Secretary said in the debate which preceded the Second Reading debate on the Bill, we undertook to give this subject serious consideration but, of course, the question depends to some extent, in so far as the law of murder is concerned, on whether or not the death sentence is retained. My hon. and learned Friend the Member for Middlesbrough, West has not addressed himself to the effect of this proposal if the death sentence is abolished and to whether it is really necessary in that event to introduce this change in the criminal law—a change which would be limited only to the offence of murder.

If capital punishment remains for murder in any particular sphere, I would agree with my hon. and learned Friend that there is ground for serious consideration of this proposal, but assuming, as the Bill proposes, that the death sentence for murder is completely abolished, I would ask my hon. and learned Friend to consider how this proposal would work. It would mean that this defence of diminished responsibility would be available on a charge of murder carrying a life sentence and not available in any other category of crime, whether or not a life sentence was the maximum for the offence.

There are certain systems where in the whole field of criminal offences this defence of diminished responsibility can be raised, but I gather that the Committee would agree that to make such a change would be a radical change of our law and a wider change than that now contemplated by the Amendment. I am advised that the Amendment would make little difference in practice if it were accepted by the Committee on the assumption that the Bill goes through,
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for there is little practical difference between a sentence of life imprisonment and one of detention during Her Majesty's pleasure. Indeed, the only difference would be that the verdict would be culpable homicide and not murder and the offender might be ordered to be detained elsewhere than in prison.

If the death penalty were retained in any sphere, this proposal would have to be considered again, but I hope that my hon. and learned Friend the Member for Middlesbrough, West will realise that if the abolition of the death penalty takes place it alters the case for this proposal, and that before adopting the proposal we should have to give serious consideration to the possibility of extending it to the whole range of criminal offences and not only to the offence of murder with liability for life imprisonment.

I should like to pay my tribute to the excellent work done by the committee over which my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) presided. While I am not at all unsympathetic to my hon. and learned Friend's proposal on the basis that the death penalty remains, I suggest that the Bill is an inappropriate vehicle for making this change in the law, limited to murder, if, in fact, the Bill is carried abolishing the death sentence for murder.

In the light of those observations I ask my hon. and learned Friend whether it would not be wisest at this stage to withdraw his Amendment. Supposing that some further alteration is made in the Bill it will be possible to table it at a later stage, but it might also be thought that it would be better to deal with a subject of this kind in a separate Measure after the consideration has been given to it to which my right hon. and gallant Friend the Home Secretary referred—in particular, of course, in considering the effect of creating this defence and limiting it to this offence, or the desirability of making an even more radical change in our law and extending it to the whole realm of criminal law.

I thought it might save the time of the Committee if I rose at this stage to urge those considerations on my hon. and learned Friend. I hope that he will find it possible to accept the suggestion that I have made. If he does not, then
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I would advise the Committee to take the course, which I hope will not be necessary, of rejecting this proposal.

I listened with great interest to the speech of the hon. and learned Gentleman the Member for Middlesbrough, West (Mr. Simon) and to the speech of the right hon. and learned Gentleman. I agree, if I may respectfully say so, with everything said by the Attorney-General, and I agree with it all the more readily because I said something like it on the occasion when we had the Second Reading of the Bill, and there was a reasoned Amendment to it on the basis of altering the law of murder instead of changing the penalty for murder.

I have every sympathy with the principle of the Amendment, and, in principle, I see no difficulty whatever in accepting it. However, I think it is abundantly clear that, however interesting and wise it is to make this alteration in the legal definition of murder, its practical importance becomes very small indeed on the assumption that the penalty for murder is no longer the capital penalty.

I think there is force, also, in the suggestion that if we are to tidy up, as it were, the law of murder generally, it is better not to do it in conjunction with a Bill which has one limited purpose such as this. Of course, if the death penalty is retained for any class of murder, there will be opportunities of reconsidering it. But, if I may respectfully do so, I join with the Attorney-General in suggesting to the hon. and learned Gentleman that he might consider whether it was proper to ask leave to withdraw his Amendment.

I regret the advice which the Attorney-General has given to the Committee. With respect to him, I think it is a little slovenly if, because of the alteration of the penalty, something which most people would like to see as an improvement of the law should not be taken into account. Because the penalty has changed it does not seem to me to be a good reason for not dealing with something which is wrong in the law. This Bill sins, as the Royal Commission said that the penalty for murder, when it was capital punishment, sinned, because it provides a single punishment for a crime widely varying in culpability.

There is no one who will not agree that the present law of insanity in murder needs serious revision and there may be two different opinions whether or not it should be done, as suggested by the Royal Commission, with an amendment to the M'Naghten Rules which would give more responsibility to the jury. I am also surprised to have heard so much worry about juries. A jury usually comes to the most sensible conclusion which any tribunal could possibly reach. Jurymen, far better than lawyers, know perfectly well what they feel and whether a man is a murderer or not.

I sometimes despair a little when I hear hon. Members on both sides of the Committee, with varying views about this matter, worried about whether a jury will be able to sort its way out of these difficult problems. In my view and that of Lord Erskine, the great Lord Chancellor, who ended as an equity lawyer, but who practised almost entirely at the criminal bar, and who took as his motto, "Trial by jury", the more that is left to a jury the better.

I disagree with the Attorney-General's view that no practical problem arises. The Amendment says that
… the court shall order the offender to be kept in custody in such place and in such manner as the court shall direct during Her Majesty's pleasure.
I have always understood on good authority that there is a great deal of difference between incarceration in Broadmoor and incarceration in prison. Therefore, whether a man should be convicted of murder when he is not a murderer, but may be guilty of the crime of culpable homicide, there is the practical distinction that he may be sentenced to serve his term of life imprisonment, whatever that may mean, in prison, or be sent to Broadmoor, where he gets certain treatment and comforts which are not known in prison. When we hear all this talk about mental treatment, it should be remembered that in present circumstances there is very little effective mental treatment given in prisons today.

For those reasons, I had hoped that the Attorney-General's advice might have been different. This is a matter which should be considered and I hope that the Committee will do so.

This matter of the law and doctrine of diminished responsibility
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is one of considerable importance. The difficulty in which the Attorney-General finds himself in advising the Committee whether to accept the Amendment arises from the illogical order in which the whole of the death penalty question has been taken. The proper way to deal with the law is to amend the substantive law first and then decide on the penalty afterwards. In fact, we are now trying to decide upon the penalty first and the law afterwards. Because the House of Commons was not prepared to allow the law to be amended first and then to debate the issue of the death penalty, we have found ourselves in this invidious position.

I have discussed the doctrine of diminished responsibility with Scottish lawyers, the Lord Advocate and others. All the Government's advisers, and, I understand, the hon. Member for Nelson and Colne (Mr. S. Silverman), are agreed that there is a great deal of support for that doctrine.

I want to make three main points about the Scottish law. The first is that Scotland has the lowest rate of murder in the world. The second is that it has no cause célèbre whatsoever. The third is that almost every Scot is satisfied with the law of murder in Scotland. Therefore, with regard to this doctrine of diminished responsibility, out of 494 cases of murder in which there have been convictions since the early part of the century, 54 of them have been found guilty of culpable homicide following this doctrine. In other words, in about 12 per cent. of the cases this doctrine has applied.

The M'Naghten Rules apply as well, and we have insanity and diminished responsibility. The unanimous findings of the Faculty of Advocates and the unanimous findings of the medical and legal professions in Scotland were all of the opinion that, from a practical point of view, this doctrine works extremely well.

Accordingly, following the debate last March I wrote to the Home Secretary and to The Times, and in both cases I advocated this doctrine. Thereafter, in the committee of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), we all discussed this proposal as lawyers, and some of us as Members of this House, and came to the conclusion that it was proper to advise the Government that, so far as diminished
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responsibility was concerned, it was a doctrine that was ideally suited to conditions in this country, that it would meet the needs of the reform of the law of insanity by getting round the M'Naghten Rules, and that it should be adopted.

There are two alternatives. If any of these Amendments retain the death penalty for any purpose—as I devoutly hope they will—by the end of this Committee stage, then this doctrine should most certainly be included in the law. It is one which should have the fervent support of all abolitionists, one which is humane and one which provides that those who are mentally abnormal but not insane should, as border-line cases, not suffer the possibility of the gallows. It is a doctrine which I hope will have the support of all hon. Members who, if I may use the phrase, vote on the abolition ticket.

If that be so, the only point I have to meet in conclusion is that made by the Attorney-General, that if we abolish the death penalty it does not make much practical difference. To my mind it makes a great deal of difference. May I put it in this way? Supposing, in fact, one had a mental black-out and suffered from diminished responsibility, would one rather be found guilty of murder or of culpable homicide? If one were the parent of the child in such circumstances, would one think it of no importance whether the murderer was found guilty of murder or of culpable homicide?

Frankly, I do not think that the Attorney-General has thought about this matter at all on this point. It is really quite a different thing altogether. To find a person guilty of murder is one thing, and to find him guilty of culpable homicide is quite another.

I understood on Second Reading that, whatever may be the outcome of this Bill, there will still be Government legislation to amend the law of murder. There is the law of provocation which must be amended and the law of diminished responsibility which must be amended. I only hope that this is not a get-out to say that if we want abolition we need not mind what is a defective law.

Those associated with me in many of these views are quite emphatic on one point. It has always been our view that if the law of murder had been properly
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amended we should not have this continual public hue and cry. These cases that come forward are causing concern because the law is defective. I will conclude with an example of a case with which I was associated.

I had the unfortunate job of defending the elder Craig. Young Craig and young Bentley went forth on their errand of murder two days after the elder Craig had been convicted and sentenced to a very long term. The younger Craig took the view that his brother had been quite wrongly convicted, and unfortunately he overheard advice tendered to his father to that effect. Consequently, two days later he went out with Bentley, who was a poor mental defective, mentally abnormal and under a sense of diminished responsibility. When Bentley went on to that roof that night any advocate could subsequently have applied this doctrine, had it existed. If it had existed, Bentley would never have gone to the gallows.

Therefore, the whole public outcry with regard to Craig and Bentley, which has done so much to curry support for the hon. Member for Nelson and Colne and his supporters, is based on the hue and cry which arises from the defective law on murder. The difference of opinion between hon. Members opposite and hon. Members on this side of the Committee is that, while we believe that the death penalty should be retained, we believe that the law on murder should be fair and not defective.

The law on murder, so far as insanity is concerned, is rotten to the core. We all laugh at it. Those who have to plan and deal with it know well that when a defence of insanity is advanced the jury will try to find in favour of the accused. An example of the perversion of the law is the case of Bass Woodcock, with which I was associated. On this the matter of diminished responsibility did not exist. Bass Woodcock killed his sister-in-law. They wanted to commit suicide. The rest of the suicide pact was that he should hand himself over to the police and hang. He was persuaded and allowed himself to be legally defended, and there was the harrowing situation of a man appearing in court who did not want to have anyone defending him. There was a plea of insanity when we knew it was diminished responsibility. The jury returned a perverse verdict of guilty but insane when
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he was sane and would have come within this doctrine.

I could cite other examples and, therefore, the matter now before the Committee is one of considerable importance. If this matter is to be dealt with in this Bill, and if in fact Amendments are accepted during the Committee stage retaining the death penalty in certain cases, then I submit that on Report stage or in another place this provision should be included in the Bill. If it is not to be included in this Bill, I ask the Government to hold to their view that it will undoubtedly be included as a doctrine in the legislation which they promised during the Second Reading debate on this Bill.

In those circumstances, we should not be deprived of what I and many others consider to be the only real safeguard to ensure that the law on murder so far as insanity is concerned is properly amended and this defect improved. In my opinion, it is along those lines that the whole of these troubles with regard to murder may be resolved, and not along the lines outlined in the Bill for which the hon. Gentleman is responsible.

I am sorry that the Amendment is being withdrawn, for reasons similar to those given by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). At this stage the Amendment is not of much practical effect. I am satisfied that the mover of the Amendment was right in suggesting that we should give our views on the question of responsibility for committing murder and that there are degrees of amenability to provocation. The accountability varies from man to man in this kind of crime.

A number of instances have been given. Some years ago I gave evidence on behalf of a murderer before a judge whose name was M'Naghten. I will give the details briefly. The man has just died and the judge is dead. The Committee may well think that I am the only one left alive. The man had killed a woman. I thought he was insane and did not know what he had done. I based my opinion upon the fact that he was the most grossly diseased man I had ever met.

He was a Scot who had been a gallant soldier in the First World War. He was decorated for bravery. He contracted
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syphilis, and when he returned home he infected his wife. As a result, she left him and his home was broken up. He became a tramp and a criminal, sinking lower and lower in social life. He was utterly diseased in brain and mind and he killed a woman because she would not leave her occupation to tramp the roads with him. It was an act that was done on the spur of the moment and without any special weapon.

That type of case would come within the ambit of this argument and is still within the old M'Naghten rules. I can tell the Committee, as a principal witness in that case, that Mr. Justice M'Naghten, very much against his will, decided that the man should not hang, although he had declared at dinner on the night before the trial—so one of the sheriffs told me—that he would hang that man next morning. The night afterwards, again at dinner, he said he had been beaten and that he could not see what was to happen in such cases in future. We must surely get away from this type of atmosphere.

I agree with the hon. Member that this has been a useful discussion. I am grateful for the sympathetic response given to the Amendment. With reference to what was said by the hon. Member about Mr. Justice M'Naghten, the hon. Member admitted that the story was secondhand. It was completely out of character with Mr. M'Naghten, and I find it difficult to believe the story.

It is important that we should not record a verdict of murder against a person whose responsibility is greatly impaired. Even more, it is distasteful to say the least to pronounce a verdict of imprisonment for life, which is the only verdict under the Bill, against such a person. To condemn such a person to prison, which is what would happen to him under the Bill, rather than send him to be detained during Her Majesty's pleasure at a mental hospital, where he would get much more suitable treatment, seems to me to be a mistake. The matter therefore seems to me to be important.

I recognise the cogency of the arguments of my right hon. and learned Friend, particularly his remark about the possibility of extending this doctrine to the whole of the criminal code. I should be in favour of that. I see the force of what he said about the inadvisability
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of dealing with the matter in one field when that possibility exists. The matter will become of great significance if any of the Amendments are carried retaining the death penalty in any respect, and if that happens perhaps it would be possible to bring this Amendment forward at a later stage.